Remington Transitional Care of San Antonio, DAB CR6733 (2025)

DECISION

Remington Transitional Care of San Antonio (Petitioner) is a skilled nursing facility (SNF), located in San Antonio, Texas, that participates in the Medicare program.  Following a survey by the Texas Health and Human Services Commission (THHSC or state agency) that was completed on May 6, 2021, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed a per-instance civil money penalty (PICMP) of $18,105 and a denial of payment for new admissions (DPNA) from June 3, 2021, through June 8, 2021.  

For the reasons set forth below, I grant CMS’s motion for summary judgment.  Petitioner has not come forward with evidence that, if believed, would show that it did everything possible (within the meaning of the regulation) to minimize the risks of accidents.  The undisputed evidence establishes that the facility was not in substantial compliance with Medicare program requirements under 42 C.F.R. § 483.25(d) (accident prevention), that its deficiency posed immediate jeopardy to resident health and safety, and that the penalties imposed are reasonable.

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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 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.  When a SNF fails to meet a statutory or regulatory participation requirement, the SNF has a “deficiency.”  42 C.F.R. § 488.301.  To be in substantial compliance, a facility’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. 

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, with no more than 15 months elapsing between surveys.  Facilities 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, a surveyor from the THHSC went to the Petitioner’s facility and completed an investigation on May 6, 2021.  CMS Exs. 1-2.  Based on the state agency’s findings, and citing the regulatory section below, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2) (Free of Accident Hazards / Supervision / Devices) cited at scope and severity level J1 (Tag F689).  CMS Ex. 1.  A PICMP of $18,105 and a DPNA from June 3, 2021, through June 8, 2021 were imposed for the deficiency.  Id.

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On August 27, 2021, Petitioner filed a timely request for hearing.2  On September 2, 2021, Administrative Law Judge Leslie Rogall issued an Acknowledgment and a Standing Prehearing Order setting forth prehearing procedures.3  CMS filed a motion for summary judgment and prehearing brief (CMS Br.), along with 17 exhibits (CMS Exs. 1-17) and 2 proposed witnesses.  Petitioner filed its brief and response to CMS’s motion for summary judgment (P. Br.), with 11 exhibits (P. Exs. 1-11) and 1 proposed witness. 

Petitioner has also filed objections to CMS’s proposed exhibits (P. Objs.), however, for purposes of summary judgment, I need not rule on whether these documents are admissible.  I must consider all proffered evidence to determine whether it creates a material fact in dispute.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d, Gorovits v. Becerra, No. 20-1850 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009). 

In any event, Petitioner’s objections are without merit.  Petitioner specifically objects to the following proposed exhibits, in whole or in part:  CMS Ex. 3, Form 2567 Statement of Deficiencies; CMS Ex. 6, Surveyor Notes; CMS Ex. 7, Declaration of Latasha Rice-Dove, RN, Surveyor; CMS Ex. 8, Declaration of Susana Cruz, RN, BSN, MHA/MBA; CMS Ex. 9, Information Regarding Medical Management Guidelines for Calcium Hypochlorite; CMS Ex. 11, Photos of Dakin’s Solution; CMS Ex. 16, “Flonase Side Effects”; and CMS Ex. 17, “Regarding Mupirocin.”  P. Objs. at 1-4.  

Petitioner objects to CMS Exs. 3, 6, 7 and 8 on the basis that they include inadmissible hearsay and legal conclusions.  See P. Objs.  Under the regulations that govern these proceedings, I have broad discretion to admit evidence.  I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material, which a statement of deficiencies and surveyor notes unquestionably are.  42 C.F.R. § 498.60(b).  I may further receive evidence, including hearsay, that would be inadmissible under the federal rules.  42 C.F.R. § 498.61; Lifehouse of Riverside Healthcare Ctr., DAB No. 2774 at 9 (2017); Britthaven, Inc., DAB No. 2018 at 3 (2006)

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(“In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of the matter asserted, where sufficient indicia of reliability are present.”).  Moreover, 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. 

Petitioner also objects to CMS Exs. 9, 11, 16 and 17 on the basis that they are misleading and should be stricken from the record.  P. Objs. at 2.  These objections address the weight I should give the evidence, not its admissibility.  Based on my review, the proposed exhibits are relevant and material, and therefore may be admitted.  42 C.F.R. § 498.60(b).  

CMS’s exhibits are therefore admissible. 

II.      ISSUES

As a threshold matter, I consider whether summary judgment is appropriate.  On the merits, the issues are: 

• Whether Petitioner was in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2);
• If Petitioner was not in substantial compliance with section 483.25(d)(1)-(2), whether this deficiency then posed immediate jeopardy to resident health and safety; and
• If Petitioner was not in substantial compliance, whether the penalties imposed – the $18,105 per-instance CMP and the DPNA – are reasonable.

III.      DISCUSSION

Summary judgment.  Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (and cases cited therein). 

The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Hum. Servs., 388 F.3d

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168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, Inc., DAB No. 2652 at 6 (2015), aff’d sub nom. W. Tex. LTC Partners, Inc. v. U.S. Dep’t of Health & Hum. Servs., 843 F.3d 1043 (5th Cir. 2016); 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587). 

In examining the evidence for purposes of determining whether summary judgment is appropriate, I must draw all reasonable inferences in the light most favorable to the non-moving party.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); see also Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable).  However, 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, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”). 

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge 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) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Hum. Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445, 449 (7th Cir. 2010).  Nevertheless, there seems to be some confusion about applying such well-founded principles of civil litigation to these proceedings, with some suggesting that, to do so, denies a party a fundamental right.  In one succinct observation, Judge Posner of the Seventh Circuit Court of Appeals gave lie to such misapprehensions:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (Emphasis added). 

In Fal-Meridian, the Seventh Circuit considered specifically the appropriateness of granting CMS summary judgment in a nursing home case involving (then) section

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483.25(h) (now section 483.25(d)).4  The court sustained the administrative law judge’s granting summary judgment in CMS’s favor because the petitioner/nursing home did not tender “evidence that, if believed, would show that it had done everything possible (within the meaning of the regulation) to minimize the risks of an accident.”  Fal-Meridian, 604 F.3d at 451.  The court stated that the relevant questions were:  1) whether the facility’s “handling of [the resident’s] physical and mental infirmities was consistent with its duty to keep the [facility] as free as possible from hazards that might cause an accident,” and 2) if not consistent, whether the facility’s dereliction of its duty “was likely to cause . . . serious injury, harm, impairment, or death to a resident.”  Fal-Meridian, 604 F.3d at 447. 

1. CMS is entitled to summary judgment because the undisputed evidence demonstrates the facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).5

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The statute and regulation require that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2); 42 C.F.R. § 483.25. 

Quality of care “is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.  Based on the resident’s comprehensive assessment, “the facility must ensure that the residents receive treatment and care in accordance with professional standards of practice, the resident’s comprehensive, person-centered care plan, and the resident’s choices . . . .”  Id. 

To this end, the “quality of care” regulation mandates, among other requirements, that the facility “ensure” that each resident’s environment remain as free of accident hazards as possible and that each resident receive adequate supervision and assistive devices to prevent accidents.  42 C.F.R. § 483.25(d).  The facility must eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.”  Del Rosa Villa, DAB

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No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x 900 (6th Cir. 2005); accord Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”).  A facility is permitted the flexibility to choose the methods it uses to prevent accidents, but the chosen methods must constitute an “adequate” level of supervision under all the circumstances.  42 C.F.R. § 483.25(d); Windsor Health Care Ctr., DAB No. 1902 at 5 (2003), aff’d sub nom. Windsor Health Care Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005). 

Where a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s “highest practicable physical, mental, and psychosocial well-being’ as required by the overarching quality-of-care requirement.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017) (quoting Azalea Court, DAB No. 2352 at 9 (2010)).  The facility is not in substantial compliance with section 483.25(d) if, without justifiable reason, it does not implement the accident precautions that its staff has determined are necessary to mitigate foreseeable accident risks.  Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 14 (2018). 

The issue for resolution here is whether Petitioner ensured that its environment remained free of accident hazards for two residents and whether Petitioner provided adequate supervision and assistance devices to prevent accidents.  Petitioner primarily argues that that are genuine issues of material fact that preclude summary judgment.  P. Br at 16.  Petitioner avers that the evidence, when viewed in the light most favorable for the non-moving party, does not demonstrate substantial noncompliance.  Id.  Alternatively, Petitioner contends that even assuming noncompliance, material issues of fact preclude summary judgment on whether there was actual harm or immediate jeopardy.  Id.  Petitioner also states that there are genuine issues of material fact with respect to the reasonableness of the CMP.  Id.  These facts are not in dispute. 

Relevant Undisputed Facts Related to Resident 1:  Resident 1 (R1), who was 87 years old, was admitted to Petitioner’s facility on April 12, 2021, with diagnoses including: cerebral infarction which caused memory impairment; cognitive and swallowing deficits; sepsis; urinary tract infection; hypertension; hypothyroidism; muscle wasting; and atrophy.  CMS Ex. 14 at 1-2.  According to the Minimum Data Set (MDS) assessment dated April 16, 2021, R1 scored 3 out of 15 on the Brief Interview for Mental Status (BIMS), a tool that assesses cognitive function and correlates to a severe cognitive

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impairment.6  Id. at 17; CMS Ex. 3 at 3.  In addition, it was noted that R1 required supervision for eating and drinking.  CMS Ex. 14 at 25, 28.  The MDS further indicated that R1 had unstageable and unhealed pressure ulcers that required treatment and injury care.  Id. at 43-46.  

On April 13, 2021, R1 received an order for skilled speech therapy four times per week.  Id. at 91.  The order indicated that the speech therapy was “for improved cognitive communication and swallowing abilities.”  Id.  In another order dated April 20, 2021, R1 was to have a pressure ulcer on her sacrum treated with saline, Dakin’s Solution and gauze one time per day.  Id.  

At approximately 3:30pm on April 28, 2021, R1 received wound care by an assistant director of nursing and Dakin’s Solution was applied.  Id. at 10.  Thereafter, at approximately 4:00pm, R1 was found vomiting by the speech language pathologist (SLP).  CMS Ex. 14 at 8, 10; see also CMS Ex. 3 at 4, CMS Ex. 6 at 1-2, CMS Ex. 7 at 5, CMS Ex. 13 at 1-2.  R1 also had one episode of loose stool following the incident.  CMS Ex. 3 at 5; CMS Ex. 5 at 8; CMS Ex. 6 at 6. 

The SLP further observed “Dakin’s Solution on [R1’s] bedside table with a straw” inside the bottle.  CMS Ex. 14 at 10.  R1 verbalized that she had taken three sips of the solution.  Id. at 8.  Petitioner’s staff immediately contacted poison control and were instructed to perform oral care and encourage oral intake.  Id.  Upon assessment, R1’s vitals were normal, and she had no pain or nausea.  Id. at 12.  R1’s physician ordered blood work, monitoring, and intravenous fluids.  Id.  Lab results showed no signs of toxicity, and R1 was “unsure why she drank” the solution.  Id. at 7-10.  

Relevant Undisputed Facts Related to Resident 2:  Resident 2 (R2), who was 88 years old, was admitted to Petitioner’s facility on April 21, 2021, with diagnoses including: metabolic encephalopathy; congestive heart failure; chronic kidney disease; and cognitive communication deficit.  CMS Ex. 15 at 1-3.  According to the MDS assessment dated April 25, 2021, R2 scored 6 out of 15 on the BIMS, which correlates to a severe cognitive impairment.  Id. at 10, 56-57; CMS Ex. 3 at 12.  Moreover, physician’s orders upon admission indicated that R2 “MAY NOT administer own meds.”  CMS Ex. 15 at 72.  

The surveyor’s notes reflect that during an observation of Petitioner’s facility on April 30, 2021, prescription medications were found in R2’s room.  CMS Ex. 7 at 7; see also CMS Ex. 6 at 5; CMS Ex. 16; CMS Ex. 17.  The prescription medications, which had R2’s name on them, were fluticasone propionate nasal spray (Flonase) and mupirocin

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2 percent ointment and were found on the counter near R2’s bed.  CMS Ex. 7 at 8.  Petitioner had not prescribed or issued orders for either of these medications.  Id. at 7.  

During an interview with Petitioner’s staff, a nurse confirmed that the prescriptions were in R2’s room and that medications were supposed to be locked in a secured place.  CMS 6 at 7.  In another interview, a licensed vocational nurse (LVN) stated that the “expectation was the admitting nurse checked the Resident’s belongings for any medications upon admission because medications needed to be locked in a secured place.”  Id. at 6.  The LVN added that R2 did not have any orders from the Petitioner’s pharmacy for these medications.  Id.  

The Facility’s Policy:  Petitioner’s policy and procedure manual included a policy with the subject, “Medications brought in by Residents.”  CMS Ex. 12 at 1.  The policy makes clear that medication brought into the facility and not ordered by Petitioner’s staff “must be brought to the nurse’s station and be presented to the nurse.”  Id.  Additionally, the medication must have been ordered by the resident’s physician and “entered on the physician order sheet and medication administration record.”  Id.  Petitioner’s policy and procedure manual also included a policy with the subject, “Bedside Medication Storage.”  Id. at 10-11.  This policy specifically states that “[b]edside medication storage is permitted for residents who wish to self-administer medications, upon the written order of the prescriber and once self-administration skills have been assessed and deemed appropriate in the judgement of the facility’s interdisciplinary resident assessment team.”  Id. at 10.  Furthermore, the policy requires that nurses “report to the charge nurse on duty any medication found at the bedside not authorized for bedside storage and to give unauthorized medications to the charge nurse for return to the family or responsible party.”  Id. at 11. 

Petitioner’s Noncompliance:  These facts plainly evidence a failure by Petitioner and its staff to fulfill its obligations to protect R1 and R2.  Considering the evidence in the light most favorable to Petitioner, the evidence establishes Petitioner did not comply substantially with 42 C.F.R. § 483.25(d).  I find that Petitioner failed to comply with its responsibility to provide R1 and R2 with an environment free of accident hazards.  

At the outset, Petitioner concedes that the SLP “found [R1] having vomited and an open bottle of Dakin’s Solution with a straw in it on the Resident’s bedside table.”  P. Ex. 3 (Declaration of Administrator Kimberly Holder).  With respect to R1, however, Petitioner generally argues that the Dakin’s Solution was not a “hazardous substance.”  P. Br. at 17.  In support of its position, Petitioner avers: 

Dakin’s [S]olution has a pH of 10, which is just above the pH level of alkaline water with a pH of up to 9, commonly touted for its health benefits.  In other words, the general public is encouraged to regularly consume a liquid with a pH of 9 for

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its health benefits.  (Pet. Ex. 10, generally).  While Petitioner certainly does not advocate drinking Dakin’s [S]olution regularly, the comparison of these two liquids with similar pH serves to underline that Resident No. 1 stood no serious risk from the ingestion of a couple of sips of 0.125% Dakin’s [S]olution. 

Id. at 18.  Petitioner further argues that R1’s one episode of loose stool should not be attributable to drinking the solution as she was having loose stool prior to the incident.  Id. at 10-11. 

For the purposes of summary judgment, I accept Petitioner’s contention that the one episode of loose stool may not have been attributable to R1’s drinking the Dakin’s Solution. 

The record, however, demonstrates Petitioner’s substantial noncompliance which posed a risk of more than minimal harm to R1’s health and safety.  Specifically, Petitioner’s position regarding the dangers of ingesting Dakin’s Solution is contradicted by its own evidence.  See, e.g., P. Exs. 4-6.  In support of its position, Petitioner submits, as evidence, the manufacturer’s label and instructions for the quarter strength Dakin’s Solution it used to treat R1’s wound.  P. Ex. 4.  This document makes clear that the Dakin’s Solution should not be consumed orally.  Id. at 2.  The warning label specifically reads:  “[i]f swallowed, get medical help or contact a Poison Control Center right away.”  Id.  Additionally, consistent with the label’s instructions, Petitioner’s staff “immediately contacted the poison control center and received instructions to monitor the resident and encourage fluids.”  P. Ex. 3 at 2 (Declaration of Administrator Kimberly Holder).  

Furthermore, even if R1 did not drink any of the Dakin’s Solution, Petitioner still would have violated its obligation to provide an environment free of accidents.  As discussed above, Petitioner’s staff left an open bottle of Dakin’s Solution in R1’s bedroom.  This action was again inconsistent with the manufacturer’s label which directly advises to “[k]eep container closed when not in use.”  P. Ex. 4 at 3.  Given that the bottle was left open in R1’s room, it was foreseeable that an accident could occur, particularly considering R1’s cognitive impairment and specified need for supervision with eating and drinking.  By leaving the bottle open in contravention of the product label, Petitioner placed R1 at a significant risk of harm to her health and safety.  

With respect to R2, Petitioner further failed to comply with its own policies by allowing unauthorized prescription medications in his residence.  As discussed above, Petitioner’s policy and procedure manual included policies regarding “Medications brought in by Residents” and “Bedside Medication Storage.”  CMS Ex. 12 at 1, 10-11.

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Petitioner does not dispute the underlying facts regarding R2 or that it had these polices.  P. Br. at 14-15.  Petitioner further asserts that the “Facility was unable to identify the person that brought the medication and laid it in the resident’s room, although it is suspected that it was one of the resident’s sons.”  Id. at 14.  Rather, Petitioner claims that R2 “denied ever seeing the medications there, and thus is not likely to have ingested them.  Even if he had ingested them, they would not have caused any harm.”  Id. at 15.  

While Petitioner argues that R2 was unlikely to “overdose” on either of the medications found in his room, the Board has repeatedly held that CMS may reasonably rely on a facility’s protocols and treatment policies as evidencing the facility’s own judgment of the care and services that are necessary at a minimum to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being.  The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008) (“CMS may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain residents’ highest practicable physical, mental, and psychosocial well-being . . . .”); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (“[T]he Board has long held that a facility’s own policy may be sufficient evidence both of professional standards of quality and of what the facility has determined is needed to meet the quality of care requirements . . . .”).  Specifically, a facility’s obligations under section 483.25 include furnishing the care and services set forth in its own resident care policies.  Logan Healthcare Leasing, LLC, DAB No. 3036 at 14 (2021); Life Care Ctr. of Bardstown, DAB No. 2479 at 22 (2012) (citing cases), aff’d, 535 F. App’x 468 (6th Cir. 2013); Life Care Ctr. of Tullahoma, DAB No. 2304 at 34 (2010) (the care and services required by section 483.25 include care and services called for by a facility’s resident care policy), aff’d, 453 F. App’x 610 (6th Cir. 2011); Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 12 (2018) (section 483.25 obligates a skilled nursing facility to follow its own resident care policies).  Indeed, “[o]nce a facility adopts a policy that incorporates the measures that are appropriate to assure that residents receive adequate supervision and assistance devices to prevent accidents . . . the facility is held to follow through on them.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 20 (2017). 

The material facts here are that prescription medications, from an outside provider, were found in R2’s bedroom in contravention of Petitioner’s own policies and physician’s order.  Considering the evidence in the light most favorable to Petitioner, the evidence establishes that Petitioner failed to provide R2 with an environment that was free of accident hazards and failed to provide adequate supervision to prevent accidents.  Fortunately, R2 did not use these medications, however, considering R2’s cognitive deficit and physician’s order that he not self-administer medicine, Petitioner’s failure to store medication in accordance with its own policies posed a risk of more than minimal harm to R2’s health and safety.  Given the facility’s failure to enforce its own policies regarding prescription medication, it failed to comply with the requirements of 42 C.F.R. § 483.25(d).

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As such, Petitioner failed to have adequate measures in place that provided R1 and R2 with adequate supervision and assistance devices to ensure an accident-free environment.  As explained above, this noncompliance, at least, posed a risk for more than minimal harm.  Therefore, Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2). 

2. The immediate jeopardy determination is not subject to review because the range of the per-instance CMP amount is not affected by a successful challenge to the level of noncompliance.

CMS concluded that Petitioner’s noncompliance with 42 C.F.R. § 483.25(d) posed immediate jeopardy at the “J” scope and severity level.  Because CMS imposed a PICMP for this deficiency, I lack authority to review CMS’s immediate jeopardy determination. 

The regulations are clear that an ALJ may review CMS’s scope and severity findings (which includes a finding of immediate jeopardy) only if a successful challenge would affect: 1) the range of the CMP amounts that CMS could collect; or 2) a finding of substandard quality of care that results in the loss of approval of a facility’s nurse aide training and competence evaluation program (NATCEP).  42 C.F.R. § 498.3(b)(14), (d)(10)(i)-(ii); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014).  Neither of these factors apply. 

Unlike per-day civil money penalties, under the regulations, there is only a single monetary range for a per-instance CMP regardless of whether or not immediate jeopardy is present.  42 C.F.R. §§ 488.408, 488.438(a)(2).  Consequently, because CMS imposed a PICMP against Petitioner, a successful challenge to the immediate jeopardy finding would not affect the range of CMP amounts that CMS could collect.  NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7.  Moreover, the evidence does not indicate that Petitioner had a NATCEP, and Petitioner does not argue that it had a NATCEP.  For these reasons, the immediate jeopardy finding is not subject to appeal, and I may not review it. 

3. A PICMP of $18,105 and a DPNA are reasonable enforcement remedies for Petitioner’s noncompliance with 42 C.F.R. § 483.25(d).

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 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).

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One such remedy CMS may impose is a civil money penalty (CMP).  42 U.S.C. § 1395i-3(h)(2)(B)(ii).  CMS may impose a PICMP for each instance of the SNF’s noncompliance or a per-day CMP for the number of days an 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 January 17, 2020, and for deficiencies that occurred after November 2, 2015, the CMP amounts may range as follows: $2,233 to $22,320 for per-instance CMPs; $112 to $6,695 per day for less serious noncompliance; or $6,808 to $22,320 per day for more serious noncompliance that poses immediate jeopardy to the health and safety of residents.  45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2870, 2880 (Jan. 17, 2020); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

In determining whether the CMP amount is reasonable, I must apply the following factors which are 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).  

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found, and in light of the above factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  See, e.g., Barn Hill Care Ctr., DAB No. 1848 at 21 (2002).  Unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

CMS argues that the CMP is reasonable based on the seriousness of the noncompliance and the facility’s culpability.  CMS Br. at 15-17; see CMS Ex. 14.  In response, Petitioner argues that the penalty is “unreasonable relative to the scope and severity of the actual non-compliance, if any.”  P. Br. at 21.  Petitioner did contend that the remaining regulatory factors failed to support the PICMP amount.  See P. Br. 

At the outset, the Board 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

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reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017). 

Petitioner’s deficiency was at the immediate jeopardy level, and Petitioner failed to provide adequate supervision to two cognitively impaired residents by allowing the residents to have solutions and medications in their room while unsupervised.  Moreover, one of its residents ultimately ingested Dakin’s Solution, which caused her to vomit on multiple occasions.  Therefore, the PICMP is entirely appropriate for a serious deficiency involving residents who were not adequately supervised. 

Lastly, Petitioner neither argues that CMS lacked a regulatory basis to impose a DPNA pursuant to 42 C.F.R. § 488.417(a) nor offers any evidence demonstrating that it returned to substantial compliance prior to June 8, 2021.  CMS was authorized to impose a DPNA from June 3, 2021, until Petitioner returned to compliance on June 8, 2021.

IV.    CONCLUSION

For all of these reasons, I grant CMS’s motion for summary judgment.  Even accepting Petitioner’s statements of fact, the undisputed evidence establishes that the facility did not ensure that R1 and R2 received adequate supervision and assistance devices to prevent accidents.  The facility was, therefore, not in substantial compliance with 42 C.F.R. § 483.25(d)(1)-(2).  The remedies imposed – $18,105 per-instance and a DPNA from June 3, 2021 to June 8, 2021– are reasonable.