Bria of Elmwood Park, DAB CR6747 (2025)

DECISION

Petitioner, Bria of Elmwood Park (formerly, Generations at Elmwood Park), is a long-term care facility located in Elmwood Park, Illinois, that participates in the Medicare program.

The Illinois Department of Public Health (state agency) completed the facility’s annual health and Life Safety Code (LSC) surveys on February 3 and 8, 2023, and found multiple deficiencies.  The state agency returned for a follow-up visit/complaint investigation survey on March 22, 2023.  Based on all the survey findings, the Centers for Medicare and Medicaid Services (CMS) determined that the facility was not in substantial compliance with Medicare program requirements and imposed remedies:  a $1,985 per-day civil money penalty (CMP) for 62 days of substantial noncompliance (January 31 through April 2, 2023), and a denial of payment for new admissions (DPNA) from March 3 through April 2, 2023.

I decide here only those matters that are properly before me and over which I have jurisdiction.

For the reasons explained below, I find that, from January 31 through April 2, 2023, the facility was not in substantial compliance with Medicare program requirements and that the amount of the CMP is reasonable.

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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 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, with no more than fifteen 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).

The February 3, 2023 survey.  On February 3, 2023, state agency surveyors completed a combined annual recertification survey, a focused infection control survey, and a complaint investigation survey.  Based on their findings, the state agency determined that the facility was not in substantial compliance with the following Medicare participation requirements: 

• 42 C.F.R. § 483.10(e)(3) (Tag F558 – resident rights:  respect and dignity – reasonable accommodations), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.25(b)(1) (Tag F686 – quality of care:  skin integrity – pressure ulcers), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.25(c)(1)-(3) (Tag F688 – quality of care:  mobility), cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.25(i) (Tag F695 – quality of care:  respiratory care – tracheostomy care and suctioning), cited at scope and severity level E;

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• 42 C.F.R. § 483.45(g), (h)(1)-(2) (Tag F761 – pharmacy services:  labeling and storage), cited at scope and severity level D; and
• 42 C.F.R. § 483.80(a)(1), (2), (4), (e), (f) (Tag F880 – infection prevention and control), cited at scope and severity level E.

CMS Exs. 1, 2, 3; see CMS Ex. 9.

The February 16, 2023 notice letter and Petitioner’s (lack of) response.  In a notice letter dated February 16, 2023, the state agency advised the facility that, based on the February 3 survey findings, the facility “was determined to NOT BE IN ‘SUBSTANTIAL COMPLIANCE’ with regulatory requirements as found in Title 42, Code of Federal Regulations.”  CMS Ex. 3 at 1.  The state agency enclosed a copy of the Statement of Deficiencies.  Id.

The letter listed the remedy that the state agency was imposing:  a Directed Plan of Correction to address the deficiency cited under section 483.80(a) (Tag F880).  The letter explained that CMS had authorized the state agency to impose that remedy.  CMS Ex. 3 at 1-2.  The letter also advised the facility that the state agency would recommend that CMS impose the following additional remedies: 

• Discretionary denial of payment for new Medicare and/or Medicaid admissions, effective March 3, 2023 (42 C.F.R. § 488.417(a));
• A CMP for the noncompliance found during the February 3 survey; and
• Termination of the facility’s provider agreement, effective August 3, 2023.

The letter also advised Petitioner that it would receive a formal notice from the CMS Regional Office only if CMS agreed with the state agency’s recommendations to impose additional remedies.  CMS Ex. 3 at 2.

In a section captioned “Formal Appeal Rights,” the letter advised Petitioner that it could request a hearing before an administrative law judge, and explained the procedures for doing so, referring Petitioner to 42 C.F.R. § 498.40 et seq.  The letter emphasized that a request must be filed “no later than sixty (60) days from the date of receipt of this notice.”  CMS Ex. 3 at 4.

Petitioner did not request a hearing within 60 days.

The February 8, 2023 survey.  On February 8, 2023, surveyors completed the facility’s annual LSC survey.  They found multiple serious deficiencies:  ten were cited at scope and severity level F (widespread substantial noncompliance that causes no actual harm

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with the potential for more than minimal harm); nine were cited at scope and severity level E.  CMS Exs. 40, 41.  Petitioner has not appealed the LSC survey findings.  See Hearing Request at 2 (listing the specific citations that Petitioner challenges).  Those findings are therefore final and binding.1

The revisit (March 17 through 22, 2023) and (arguably) contradictory notice letters.  State surveyors revisited the facility from March 17 through March 22, 2023, to determine whether the facility had corrected the deficiencies cited during the February 3 survey and to investigate a new complaint.  CMS Ex. 53.  Petitioner views the revisit as two separate surveys, one completed on March 20, finding the deficiencies corrected and citing no new deficiencies; the other, completed on March 22, citing one new deficiency.  P. Br. at 4, 15; see P. Exs. 2, 3; CMS Ex. 42.

CMS, however, views this as one survey, completed on March 22, 2023.  The surveyors determined that the previously-cited deficiencies had been corrected but found a new deficiency, and, based on that finding, CMS determined that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d) (Tag F689 – quality of care:  accident prevention), cited at scope and severity level D.  CMS Exs. 42, 43.2 

The confusion here was caused by the state agency’s notice letters.  In a letter, dated March 27, 2023, the state agency advised the facility that, based on the March 20, 2023 re-inspection of the facility, the facility was considered in substantial compliance, effective February 27, 2023.  The letter again reminded Petitioner that it would receive a notice from CMS only if additional remedies were imposed.  P. Ex. 4.  However, in a subsequent notice letter, dated March 30, 2023, the state agency advised Petitioner that, on March 22, 2023, “another survey in the same cycle” was conducted at the facility to investigate an incident.  As a result of the survey, additional deficiencies were identified, and “all remedies proposed, recommended, or imposed” would continue in effect.  CMS Ex. 43 at 1.  The notice did not include appeal rights.

Thereafter, CMS determined that the facility returned to substantial compliance on April 3, 2023.  In a notice letter dated May 18, 2023, CMS described the results of the February 3 and February 8 surveys.  It reminded Petitioner that, on February 16, 2023, the state agency notified the facility that it was imposing a remedy (a directed plan of

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correction) and advised Petitioner of its right to appeal the survey findings.  CMS Ex. 1 at 1.  The notice directed Petitioner to refer to the state agency’s February 16 notice and to “note the deadline for that appeal.”  CMS Ex. 1 at 4 (emphasis added).

In addition to the remedy already imposed, the letter advised Petitioner that CMS was imposing a discretionary denial of payment for new admissions and a CMP of $1,985 per day for 62 days of substantial noncompliance (January 31 through April 2, 2023).  (Total:  $123,070).  CMS Ex. 1 at 2.

The notice provided some additional appeal rights, explained the appeal procedure with a citation to the regulations, and emphasized that a hearing request must be filed “no later than 60 days” from the date of receipt of the notice.  CMS Ex. 1 at 3-6.

Sixty days later, Petitioner filed its hearing request, challenging all of the deficiencies cited during the February 3 and March 22 surveys, as well as a long list of additional “determinations, findings, and conclusions” (most of which are not reviewable in this forum).  Among the items listed, Petitioner challenged the remedies imposed, the duration of Petitioner’s noncompliance, the scope and severity of the deficiencies cited, and the use of the citations in calculating the facility’s five-star rating.3 

Decision on the written record.  CMS has moved for summary judgment, which Petitioner opposes.

In my standing order, I directed the parties to include, in the form of an affidavit or written declaration, the complete written direct testimony of any proposed witness.  Standing Order at 3, 5, 7 (¶¶ 4c(4), 8, 13).  I noted that a party has a right to cross-examine any witness of the opposing party and instructed the parties to file written requests to cross-examine.  I directed Petitioner to file, as part of its prehearing exchange, “a separate document identifying the witness(es) Petitioner wants to cross-examine with its written objections to exhibits.”  Standing Order at 5 (¶ 9); CRDP § 16(b).

In compliance with my order, CMS lists six witnesses and provides their written direct testimony (CMS Exs. 35-39, 55).

Petitioner, however, has attempted to circumvent the order’s explicit directions.  It lists no proposed witnesses and identifies no witness that it wishes to cross-examine.  Instead, Petitioner unilaterally declares that it “reserves the right” to call “any witnesses called by

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CMS, and to call additional witnesses for purposes of impeachment or rebuttal” and “to amend this list at any time prior to the hearing.”  DAB E-file Dkt. C-23-586, Doc. # 14b.  Inasmuch as Petitioner had before it the complete written direct testimony of CMS’s witnesses, as well as CMS’s exhibits, it already had the information that it might have needed to respond to CMS’s case.

Moreover, consistent with the regulation that authorize me to do so, my standing order is designed to narrow the issues and identify the evidence and witnesses to be presented at the hearing.  See 42 C.F.R. § 498.47(a).  Parties may not subvert this valid purpose by failing to identify a witness as ordered and expecting to do so at some unspecified later time.  They are not free to rewrite judges’ orders.

Notably, although it has had ample time in which to do so, Petitioner has not since identified any of its own witnesses nor asked to cross-examine any of CMS’s witnesses.

Because Petitioner has no witnesses and has not asked to cross-examine any of CMS’s witnesses, there are no witnesses to be examined or cross-examined.  An in-person hearing would therefore serve no purpose, and this case may be decided based on the written record, without considering whether the standards for summary judgment have been met.  Standing Order at 5 (¶ 10) (“A hearing to cross-examine witnesses will be necessary only if a party files admissible, written direct testimony, and, in compliance with this order, the opposing party asks to cross-examine”); HeartFlow, Inc., DAB No. 2781 at 16-17 (2017) (citing Vandalia Park, DAB No. 1940 at 28-29 (2004), aff’d, Vandalia Park v. Leavitt, 157 F. App’x 858 (6th Cir. 2005)).4  

The parties’ submissions.  With its pre-hearing brief and motion for summary judgment (CMS Br.), CMS has filed 56 exhibits (CMS Exs. 1-56).  Petitioner filed its own prehearing brief and opposition to summary judgment (P. Br.) with seven exhibits (P. Exs. 1-7).

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Some of the proffered documents relate to the February 3 and 8 surveys.  Although, as I explain below, because Petitioner did not appeal the February 8 life safety code determinations nor the February 3 survey determination that it was not ins substantial compliance with section 483.80(a), those findings are administratively final and binding.  Nevertheless, in determining whether the amount of the CMP is reasonable, I must consider (among other factors) the scope and severity of all deficiencies and the facility’s degree of culpability.  See 42 C.F.R. §§ 488.438(f), 488.404 and discussion, below.  This means that the documents describing facts underlying the un-appealed deficiencies are relevant and should be admitted.

Petitioner’s objections to CMS’s exhibits.  Petitioner objects to my admitting nine of CMS’s proffered exhibits:

• CMS Ex. 2 – the Statement of Deficiencies for the survey completed on February 3, 2023 “to the extent that it contains hearsay”;
• CMS Ex. 6 – the facility’s CASPER (Certification and Survey Provider Enhanced Report), which profiles some of its compliance history;
• CMS Ex. 29 – notes of surveyor interviews with facility employees, taken during the February 3, 2023 survey;
• CMS Ex. 40 – the Statement of Deficiencies for the survey completed on February 8, 2023 “to the extent that it contains hearsay”;
• CMS Ex. 42 – the Statement of Deficiencies for the survey completed on March 22, 2023 “to the extent that it contains hearsay”;
• CMS Ex. 46 – a Resident Review Worksheet for the March 22 survey, which includes surveyor notes;
• CMS Ex. 49 – a Resident Review Worksheet for the March 22 survey, which includes surveyor notes;
• CMS Ex. 51 – a Resident Review Worksheet for the March 22 survey, which includes surveyor notes; and
• CMS Ex. 53 – additional surveyor notes from the March 22 survey.

The Federal Rules of Evidence do not apply to this administrative proceeding, and I have broad discretion to admit evidence.  I may receive evidence, including hearsay, that would be inadmissible under the federal rules.  42 C.F.R. § 498.61; Lifehouse of

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Riverside Healthcare Ctr., DAB No. 2774 at 9 (2017).  I admit hearsay “consistent with procedural ‘integrity and fundamental fairness.’”  Omni Manor Nursing Home, DAB No. 1920 (2004) (quoting Richardson v. Perales, 402 U.S. 389, 410 (1971)); Britthaven, Inc., DAB No. 2018 at 3 (2006) (“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, I am required to inquire “fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b).

It is well-settled that survey report forms (here, CMS Exs. 2, 40, and 42) should be admitted.  A statement of deficiencies sets out the survey findings on which CMS based its enforcement actions that are the subject of appeal and, for that reason, is “unquestionably relevant and material evidence.”  Avalon Place Trinity, DAB No. 2819 at 38 (2017) (emphasis added).  In Guardian Health Care Ctr., the Departmental Appeals Board characterized the Statement of Deficiencies as a “contemporaneous record of the survey agency’s observations and investigative findings.”  DAB No. 1943 at 12 (2004).  Thus, in order to “inquire fully into all matters at issue,” I must admit the Statements of Deficiencies.

Contemporaneous surveyor reports and notes (CMS Exs. 29, 46, 49, 51, and 53) describing the conditions in the facility are also relevant and material and would be admissible even under the Federal Rules of Evidence.  An opposing party’s statement, which would include statements facility staff made to the surveyors (CMS Ex. 29), is admissible under Fed. R. Evid. 801(d)(2) as an opposing party’s statement.  See Florence Park Care Ctr., DAB No. 1931 (2004).  The other notes and worksheets would be admissible under Fed. R. Evid. 803(1), under which a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is admissible as a “present sense impression” exception to the hearsay rule.

Petitioner objects to my admitting the facility’s CASPER (CMS Ex. 6), arguing that its admission violates due process:  “This document contains a variety of references to and allegations of prior instances of non-compliance that the [f]acility has not always been granted the right to contest at a hearing.”  DAB E-file Dkt. C-23-586, Doc. # 14a.  In determining whether the CMPs imposed are reasonable, I consider the facility’s compliance history (42 C.F.R. § 488.438(f)(1)), which makes the CASPER relevant and material.  The document is also admissible under the “public records” exception to the hearsay rule.  Fed. R. Evid. 803(8).

Moreover, Petitioner does not argue, much less present evidence suggesting, that it disputed or even attempted to dispute any of the specific survey findings listed in the CASPER.  In fact, the objection is somewhat disingenuous in that, on July 2, 2021, Petitioner unquestionably appealed the January 2019 survey findings, which are referred

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to in the exhibit.  CMS Ex. 6 at 2-3.  The case was docketed as C-21-888.  Petitioner subsequently withdrew its appeal on November 19, 2021, and the ALJ dismissed it on November 22, 2021.5 

CMS Exs. 1-56 are therefore admissible.

CMS’s objection to Petitioner’s exhibit.  CMS objects to my admitting P. Ex. 7, a 667-page exhibit documenting the financial condition of the facility’s former owner.  CMS argues that the financial condition of a former owner is irrelevant.  Petitioner asserts that “Generations at Elmwood” owned the facility “at the time of the survey cycle in question.”  According to Petitioner, because Generations owned the facility at the time of the citations, and was thus the “guilty party,” it “retains the liability to pay the CMP and associated remedies by agreement of the parties.”  P. Resp. to CMS’s Obj. to Ex. 7 at 3 (DAB E-file Dkt. C-23-586, Doc. # 17).

Nursing home enforcement remedies are “remedial,” not “punitive,” and, thus, concepts such as “guilty” and “not guilty” do not apply.  Instead, the Medicare statute and regulations refer to whether a facility is in “substantial compliance” or not in “substantial compliance.”  NMS Healthcare of Hagerstown, DAB No. 2603 at 8 n.6 (2014) (pointing out that the regulations “make it clear that a CMP is not a punitive mechanism but, rather, one of the ‘remedies’ whose ‘purpose . . . is to ensure prompt compliance with program requirements.  42 C.F.R. § 488.402(a).’”); see Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 171 (2023) (Alito dissenting) (pointing out that the “remedial provisions” of the Federal Nursing Home Reform Act allow federal officials to pursue “certain limited remedies,” such as withdrawing federal funding and imposing CMPs for each day of noncompliance).

When there is a change of ownership, the existing provider agreement is automatically assigned to the new owner, subject to all applicable statutes, regulations, and to the terms and conditions under which it was originally issued.  42 C.F.R. § 489.18(c), (d).  The new owner is responsible for the facility conditions “regardless of who may have initially created them.”  Crestview Parke Care Ctr., DAB No. 1836 (2002), aff’d in part, rev’d and remanded in part on other grounds, Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748-51 (6th Cir. 2004); CarePlex of Silver Spring, DAB No. 1683 (1999);

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CarePlex of Silver Spring, DAB No. 1627 (1997); see Mission Hosp. Reg’l Med. Ctr. v. Burwell, 819 F.3d 1112 at 1116 (9th Cir. 2016) (explaining that section 489.18 provides for “continuity of obligations,” which is essential to the functioning of the Medicare payment system).

In purchasing the facility, Petitioner was, of course, free to make whatever financial arrangements it wanted to make with the former owner (although it seems odd to agree that an entity without money would effectively indemnify the purchaser for any penalties due), but such an agreement does not bind CMS and does not preclude the agency from collecting the payment from the current provider.  As the Ninth Circuit observed in a similar context: 

Federal law fixes the relationships and responsibilities of Medicare with beneficiaries and providers.  These relationships and responsibilities are beyond the reach of private parties . . . to alter.

Mission Hosp., 819 F.3d 1112 at 1117.  Private parties simply have no power to negotiate away their legal obligations to the Medicare program, which are defined by the statute, regulations, and the terms of their provider agreements.  Id.6 

In determining whether the amount of a CMP is reasonable, I consider, among other factors, “the facility’s financial condition.”  42 C.F.R. § 488.438(f)(2).  An inquiry into the provider’s financial condition should focus on whether the provider can pay the CMP without being put out of business.  Gilman Care Ctr., DAB No. 2357 at 7-9 (2010); Wisteria Care Ctr., DAB No. 1892 (2003); Milpitas Care Ctr., DAB No. 1864 (2003).  The financial condition of a former owner is not relevant to this question.  Because the former owner’s financial situation is not related to the facility’s current financial condition, P. Ex. 7 is irrelevant and should not be admitted.

I admit into evidence CMS Exs. 1-56 and P. Exs. 1-6.

ISSUES

As a threshold matter, I determine the limits of my jurisdiction.  Based on the determinations that Petitioner did not timely appeal, I find that the facility was not in substantial compliance with Medicare program requirements, specifically the Life Safety Code and 42 C.F.R. § 483.80(a)(1), (2), (4), (e), (f) (Tag F880).

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The issues before me are: 

• From January 31 through April 2, 2023, was the facility in substantial compliance with the remaining Medicare program requirements that were cited during the February 3 and March 22 surveys, and
• Is the $1,985 per-day penalty reasonable? 

I am not reviewing how CMS decided to impose this remedy.  Nor am I restricted to the facts or evidence available to CMS when it made its decision.  Instead, I take a fresh look at the legal and factual bases for the deficiency findings underlying the remedies to determine the facility’s substantial compliance.  Britthaven of Chapel Hill, DAB No. 2284 at 6 (2009).

Issues that are not reviewable.  Petitioner asks that I reverse the denial of payment for new admissions.  The facility may not appeal CMS’s choice of remedy.  42 C.F.R. §§ 488.408(g)(2), 498.3(d)(14); Beverly Health & Rehab. Servs., Inc. v. Thompson, 223 F. Supp. 2d 73, 111 (D.D.C. 2002) (holding that the “determination of what remedy to seek is beyond challenge.”).

Petitioner also asks that I “mandate that all publications in the public record, including the use of these citations for calculation of the [f]acility’s ‘5-Star Quality Rating[,]’ be deleted pending the outcome” of these proceedings.  P. Br. at 2.  Petitioner asserts that publishing the survey results violates the facility’s due process rights.  P. Br. at 8, 16-20.  Such publication of deficiency findings, however, “does not trigger appeal rights under the Act or regulation.”  Generations at Regency Ctr., DAB No. 2950 at 7 (2019); San Fernando Post Acute Hosp., DAB No. 2492 at 15 (2012).

Petitioner challenges CMS’s determination that the deficiency cited under section 483.25(b)(1) caused actual harm (scope-and-severity level G).  That scope-and-severity determination is not reviewable here.  The regulations authorize such review if:  (1) a successful challenge would affect the range of the CMP; or (2) CMS has made a finding of substandard quality of care that results in the loss of approval of the facility’s nurse aide training program.  42 C.F.R. § 498.3(b)(14), (d)(10); 38-40 Freneau Ave. Operating Co., LLC, DAB No. 3008 at 11-12 (2020); Madison Cnty. Nursing Home, DAB No. 2895 at 16 (2018); NMS Healthcare of Hagerstown, DAB No. 2603 at 6-7 (2014); Cedar Lake Nursing Home, DAB No. 2344 at 9 (2010); Heritage Park Rehab. & Nursing Ctr., DAB No. 2231 at 15-16 (2009); Evergreen Commons, DAB No. 2175 (2008); Aase Haugen Homes, Inc., DAB No. 2013 (2006).

The per-day penalty would remain in the same lower range even if the scope-and-severity finding were reduced, so the first criterion is not met.

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Nor is the second criterion met.  Certain types of deficiencies, including quality-of-care (42 C.F.R. § 483.25), can lead to a finding of “substandard quality of care.”  The deficiency must be cited at one of the following scope-and-severity levels:  immediate jeopardy; a pattern of or widespread actual harm that is not immediate jeopardy; or widespread deficiencies with the potential for more than minimal harm.  42 C.F.R. § 488.301.  Because the scope of a G-level deficiency is isolated, it does not meet the definition of substandard quality of care.

Even if CMS had been able to find substandard quality of care, its scope-and-severity finding would not be reviewable because of the amount of the penalty.  If (as here) I approve a penalty of $11,995 or more, CMS’s scope-and-severity finding does not affect approval of its nurse aide training program (assuming it has one).  Under the statute and regulations, the state agency cannot approve the program if CMS imposes a penalty of $11,995 or more.  Thus, the facility would lose its approval without regard to the scope-and-severity finding.  Act § 1819(f)(2)(B); 42 C.F.R. § 483.151(b)(2)(iv); 87 Fed. Reg. 15,100, 15,120 (March 17, 2022).

DISCUSSION

1. Petitioner is not entitled to a hearing challenging the infection control deficiency (42 C.F.R. § 483.80) cited during the February 3, 2023 survey because it did not timely request a hearing, and no good cause justifies extending the time for filing.7 

Section 1866(h) of the Social Security 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 section 205(b), the Secretary of Health and Human Services must provide reasonable notice and opportunity for a hearing “upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s decision.  The hearing request “must be filed within sixty days” after receipt of the notice of CMS’s determination.  Act § 205(b) (Emphasis added).  The 60-day time limit is thus a statutory requirement.  Rutland Nursing Home, DAB No. 2582 at 2 (2014).

Similarly, the regulations mandate that the affected party “file the request in writing within 60 days from receipt of the notice . . . unless that period is extended . . . .”  42 C.F.R. § 498.40(a)(2).  The party may file with the administrative law judge a written request for extension of time, stating the reasons why the request was not filed timely.

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For good cause shown, the judge may extend the time for filing.  42 C.F.R. § 498.40(c).  Absent a written request and a showing of good cause, the matter should be dismissed pursuant to 42 C.F.R. § 498.70(c).  New Grove Manor, DAB No. 3090 at 2 (2023); W. Side House LTC Facility, DAB No. 2791 at 2, 5 (2017); Concourse Nursing Home, DAB No. 1856 (2002); Cary Health & Rehab. Ctr., DAB No. 1771 at 8-9 (2001).

Here, following the February 3 survey, the state agency imposed a remedy for the facility’s infection control deficiency.  CMS Ex. 3 at 1-2.  The facility therefore had a right to further review of that deficiency finding, so long as it satisfied the requirements of section 205(b) and 42 C.F.R. § 498.40.  42 C.F.R. § 498.3(b)(13); see 42 C.F.R.§ 488.406(a)(4).8 

Petitioner unquestionably failed to meet the deadline for appealing the finding that it did not comply with section 483.80.  The state agency sent its notice letter by electronic transmission on February 16, 2023.  Petitioner does not deny that it received the notice letter on that day.  Its appeal of the February 3 survey finding was therefore due no later than April 17, 2023.  Petitioner did not file anything until July 17, 2023, three months after the deadline for challenging the infection control deficiency finding.  Petitioner has neither requested an extension (in writing or otherwise) nor alleged good cause for its failing to meet the filing deadline.

The February 16 notice used standard language to advise the facility of its appeal rights and deadline.  The Departmental Appeals Board and reviewing courts have repeatedly determined that such language is “clear and unambiguous” and provides explicit instructions as to what the facility must do to preserve its hearing rights.  W. Side House, DAB No. 2791 at 6; Rutland, DAB No. 2582 at 8 (observing once again that the “language CMS used in its notice letter (or similar language) adequately notifies facilities of the requirement to request a hearing within the 60-day regulatory time frame”); Waterfront Terrace, Inc., DAB No. 2320 at 3, 6 (2010); Mimiya Hosp., DAB No. 1833 at 4, 6 (2002), aff’d, Mimiya Hosp., Inc. v. U.S. Dep’t of Health & Hum. Servs., 331 F.3d 178 (1st Cir. 2003) (concluding that a CMS letter, stating that a “written request for a hearing must be filed no later than 60 days from the date of receipt of this letter,” contained “explicit directions” on how to seek review of CMS’s determination); Quality Total Care, L.L.C., DAB No. 2242 at 2 (2009); Concourse Nursing Home, DAB No. 1865 at 3, 10 11, aff’d, Concourse Rehab. & Nursing Ctr. v. Thompson, 155 F. App’x 28 (2d Cir. 2002) (finding that the notice letter was “perfectly clear” and provided “clear

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notice of the enforcement action pending against it, the basis for this action . . . and [the facility’s] right to appeal the action to HHS within 60 days”); Nursing Inn of Menlo Park, DAB No. 1812 at 4 (2002) (“We are at a loss to understand how [the facility] can claim that it found the wording of the notice confusing.”).

The letter also warned that, unless CMS imposed additional remedies, the facility would receive no additional notices, leaving no doubt that responding to the February 16, 2023 notice letter represented the facility’s only opportunity to appeal the section 483.80(a) deficiency finding.  CMS Ex. 3.

Because Petitioner failed to appeal timely the February 3, 2023 survey determination that the facility was not in substantial compliance with 42 C.F.R. § 483.80, that determination is final and binding.  42 C.F.R. § 498.20(b).

I am mindful that, unlike its more aggressive position in similar cases, CMS now ignores Petitioner’s jurisdictional problem.  See, e.g., Taos Living Ctr., DAB No. 2293 (2009); Chicago Ridge Nursing Ctr., DAB CR1498 (2006) (“CMS contends that, because Petitioner did not [timely] appeal a cited deficiency . . . [in an] October 27, 2004 [complaint] 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); Willow Rose Rehab & Health Care Ctr., DAB CR6351 (2023) (referring to CMS’s statement that the facility did not timely appeal the survey findings and finding final and binding the deficiencies identified in the survey); but see Generations at Regency, DAB CR6660 at 7-8 (2025) (explaining why CMS’s acquiescence does not give the ALJ jurisdiction to review an untimely appeal). 

A presiding judge has an independent obligation to ensure subject matter jurisdiction, even when neither party has raised the issue.  Restoration Risk Retention Grp., Inc. v. Gutierrez, 880 F.3d 339, 345 (7th Cir. 2018).  Lack of subject matter jurisdiction is a problem that cannot be cured and requires dismissal.  Fed. R. Civ. P. 12(h)(3); Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (ruling that “[n]o action of the parties can confer subject matter jurisdiction.”).  This principle applies to any tribunal of limited jurisdiction, which includes those that hear nursing home appeals pursuant to section 1866(h) of the Act.  The ALJ’s jurisdiction is circumscribed by the Act and regulations, and, according to those authorities, absent a showing of good cause, the ALJ has no authority to consider a petitioner’s late-filed appeal.9

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Based on the un-appealed deficiency from the February 3, 2023 survey and the deficiencies found during the un-appealed February 8, 2023 survey, I find that, the facility was not in substantial compliance with Medicare program requirements, and that the CMP must be at least $120 per day.  87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).

2. The facility was not in substantial compliance with 42 C.F.R. § 483.25(b)(1) because staff did not take necessary precautions to protect residents from developing preventable pressure sores; and, when a resident developed a pressure sore, staff did not take all necessary precautions to promote healing, prevent infection, and prevent new sores from developing.

Program requirement:  42 C.F.R. § 483.25(b)(1) (Tag F686).  “Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.

Under the statute and the quality-of-care regulation, each resident must receive, and the facility provide, the necessary care and services to allow a 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); 42 C.F.R. § 483.25.  To this end, the facility must (among other requirements) ensure that a resident who enters the facility without pressure sores does not develop them unless the resident’s clinical condition shows that they were unavoidable, based on a comprehensive assessment.  42 C.F.R. § 483.25(b)(1)(i).  If the resident already has pressure sores, the facility must ensure that he/she receives the treatment and services necessary to promote healing, prevent infection, and prevent new sores from developing.  42 C.F.R. § 483.25(b)(1)(ii).

In assessing the facility’s compliance with this requirement, the relevant question is:  did the facility “take all necessary precautions” to promote healing, prevent infection, and prevent new sores from developing?  If it did so, and the resident develops sores anyway, I could find no deficiency.  But if the evidence establishes that the facility fell short of taking all necessary precautions, it has violated the regulation.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 11-12 (2021) (“[A] facility cannot claim unavoidability unless it first shows that it furnished all necessary treatment and services.”); Fireside Lodge Ret. Ctr., DAB No. 2794 at 12 (2017) (holding that the issue was not whether a pressure sore could be expected to heal, but rather whether the facility staff provided the care and services necessary to promote healing); Senior Rehab. & Skilled Nursing Ctr., DAB No. 2300 at 13-14 (2010), aff’d, Senior Rehab. & Skilled

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Nursing Ctr. v. HHS, 405 F. App’x 820 (5th Cir. 2010); Koester Pavilion, DAB 1750 at 32 (2000).10  

Facility policy:  Pressure Ulcer Prevention Protocol.  The facility had in place a policy requiring that residents be assessed to determine their risk factors for developing pressure ulcers.  CMS Ex. 27 at 3.  Specifically: 

• Residents would be assessed upon admission and at least quarterly thereafter.
• All facility beds were to have pressure-reducing mattresses, unless the resident required pressure-relieving mattresses.
• Newly admitted or re-admitted residents would have a pressure risk assessment completed upon admission, weekly thereafter for the following four weeks, and then quarterly.
• Interventions necessary to maintain skin integrity or to promote healing would be incorporated into the resident’s plan of care.
• The resident’s care plan would indicate the resident’s risk factors and include individualized interventions, as needed, for a comprehensive pressure ulcer prevention program.
• Residents would have their skin checked and the check documented using the Treatment Administration Record.  This skin check would be performed “a minimum of weekly.” 

Id.

Resident 72 (R72).  R72 was a 42-year-old man, admitted to the facility on January 31, 2017, and readmitted on February 3, 2022.  CMS Ex. 17 at 1.  He was seriously ill, suffering from a long list of debilitating ailments, including:  chronic respiratory failure, acute respiratory disease, dermatitis (skin inflammation), Vitamin D deficiency, major depressive disorder, peripheral vascular disease, arterial insufficiency, epilepsy, encephalopathy, and anemia.  He required a ventilator.  CMS Ex. 17 at 2.  R72 was at

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“very high risk for skin breakdown,” with a Braden score below 12.  CMS Ex. 17 at 6.  His care plan lists the circumstances that made him so vulnerable:  level of dependence; incontinence; immobility; impaired cognition; decreased tissue perfusion (process of delivering blood to the body’s tissues); impaired circulation; poor nutritional status; presence of non-removable devices (trach, gastric tube); scar tissue; history of wounds; decreased sensory perception; and presence of severe contractures to bilateral lower extremities.  Id. 

R72’s care plan directed staff to:  avoid shearing the resident’s skin during positioning, transferring, and turning; conduct systematic skin inspections on shower days and as needed, paying particular attention to bony prominences; keep bony prominences from direct contact with the pillow; apply hydrocolloid to the resident’s sacrum, as a protective dressing; apply “skin prep” to blister on right anterior thigh and cover with dry dressing; keep the resident as clean and dry as possible, minimizing skin exposure to moisture; and provide incontinence care after each incontinent episode.  CMS Ex. 17 at 6.

The record includes no documentation as to whether and how the facility implemented these directions, including evidence of systematic skin inspections.  However, it includes evidence that R72 developed significant pressure sores: 

• From December 14, 2022, through January 11, 2023, he had a stage 2 pressure wound of his right ischium (bone that forms the back part of the hip bone);
• From December 21, 2022, through January 25, 2023, he had a stage 4 pressure wound on his right lateral ankle; and
• As of January 11, 2023, he had a stage 3 pressure wound on his sacrum.

CMS Ex. 17 at 4.11  CMS has not claimed that the development of these pressure sores created a deficiency under section 483.25(b)(1).  Nevertheless, they demonstrate R72’s

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extreme vulnerability, making it all the more important that the facility “furnish all necessary treatment and services” to prevent pressure sores from developing.

On March 31, 2020, R72’s physician ordered bilateral heel protectors, every shift.  CMS Ex. 17 at 4.  As called for in the facility’s policy, this direction should have been added to the resident’s care plan. CMS Ex. 27 at 3 (requiring that “individualized interventions” be part of the care plan).  It was not.  CMS Ex. 17.  The Departmental Appeals Board has emphasized that section 483.25 requires that the facility follow its own resident care policies.  Heritage House of Marshall, DAB No. 3035 at 10 and cases cited therein.  Thus, failing to incorporate the physician order into R72’s care plan, as directed by the facility’s policy, put the facility out of substantial compliance with section 483.25(b)(1).

But CMS has not focused on this apparent deficiency, and it was not the facility’s most serious problem regarding its treatment of R72.  On February 1, 2023, and again on February 2, 2023, Surveyor Stella Anele, R.N., observed R72 lying in bed without a heel protector.  CMS Ex. 37 at 2 (Anele Decl. ¶ 11).  She spoke to the facility’s wound care nurse and the facility’s DON about the issue, and both acknowledged that R72 should have been wearing both heel protectors at these times.  CMS Ex. 37 at 2 (Anele Decl. ¶ 12).

Petitioner has not challenged any of this.  Instead, it claims that R72 experienced no actual harm, so CMS cannot support citing the deficiency at scope-and-severity level G.  P. Br. at 9.  As explained above, CMS’s scope-and-severity determination is not reviewable.

Because the facility did not follow the physician order for bilateral heel protectors, it was not in substantial compliance with section 483.25(b)(1).  Heritage House of Marshall, DAB No. 3035 at 19; Cedar Lake Nursing Home, DAB No. 2390 at 3 (2011) (holding that a facility’s failure to comply with physician orders, a resident’s care plan, or its own policies can constitute a deficiency under section 483.25); Woodland Village Nursing Ctr., DAB No. 2053 at 9 (2006), aff’d, Woodland Vill. Nursing Ctr. v. U.S. Dep’t. of Health & Hum. Servs., 239 F. App’x 80 (5th Cir. 2007) (citing Lakeridge Villa Health Care Ctr., DAB No. 988 at 22 (2005), aff’d, Lakeridge Villa Care Ctr. v. Leavitt, 202 F. App’x 903 (6th Cir. 2006).

[W]here a facility is proven to have been providing improper care or not providing care as ordered by the physician or planned by the facility itself as necessary to protect against or

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treat pressure sores, CMS need not wait to see if an infection or aggravation of a sore ensues before citing a deficiency.

Woodland Village Nursing Ctr., DAB No. 2172 at 14 (2008) (emphasis added).

Because it failed to provide bilateral heel protectors, as ordered by the resident’s physician, the facility was not in substantial compliance with section 483.25(b)(1), and I could sustain the deficiency without considering any additional evidence.  After all, for someone as vulnerable as R72, leaving off the heel protectors could have – and likely would have – dire consequences.

Resident 246 (R246).  R72 was not the only resident for whom the facility did not take all necessary precautions to prevent pressure sores from developing.  On January 9, 2023, the son of a facility resident complained to the state agency that his mother received improper nursing care and, as a result, ended up in the emergency room with a painful bedsore.  CMS Ex. 9.  In response, as part of the February 3 survey, the state agency looked at the treatment provided to R246.

R246 was a 74-year-old woman, admitted to the facility on August 11, 2022, suffering from hypertensive heart and chronic kidney disease.  She had a decreased white blood cell count, hereditary and idiopathic neuropathy, type 2 diabetes mellitus, psoriasis, idiopathic gout, chronic obstructive pulmonary disease, dementia, psychotic disturbance, and anxiety.  CMS Ex. 25 at 1, CMS Ex. 30 at 14.

Petitioner asserts that, at the time of her admission, R246 was being treated for “an area of [skin] breakdown on her right foot first metatarsal . . . .”  P. Br. at 10; see CMS Ex. 30 at 2.  No contemporaneous documentation supports the claim.  In fact, the resident’s initial assessment and her initial care plan indicate otherwise.

In what appears to be an initial assessment (although it is undated), the facility determined that R246 was at moderate risk of skin breakdown, with a Braden score of 13.  CMS Ex. 25 at 2.  Consistent with this assessment, her care plan, initiated on August 20, 2022, describes her as at risk for skin irritation/breakdown and a urinary tract infection related to her bowel and bladder incontinence.  The plan does not suggest that she then had a pressure ulcer and does not mention or address any immediate problems with her foot or elsewhere.  CMS Ex. 30 at 14.  Instead, the plan interventions seem more directed to problems (including potential skin breakdown) caused by her incontinence: 

• Check skin integrity per facility protocol.
• Encourage adequate fluids during the day, if not contraindicated.

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• Inform the resident about incontinence care before providing it.  Maintain privacy, dignity, and respect during incontinence care.
• Observe urinary output.
• Provide incontinence care after each incontinent episode.  Avoid friction to skin.  Use appropriate personal protective equipment when providing incontinence care.
• Report any signs of skin breakdown (sore, tender, red, or broken areas).
• Report signs and symptoms of urinary tract infection.
• Routinely check and change.  “Chartable task in Plan of Correction:  unchecked[.]  Include on Profile:  checked[.]”12 
• Use moisture barrier products to perineal area as ordered.

CMS Ex. 30 at 14-15.  The approaches listed are obviously inadequate for addressing an existing skin breakdown on the resident’s foot.  Thus, if R246 had the wound, the care plan shows that the facility did not implement interventions to promote healing and prevent infection, which means that it was not in substantial compliance with section 483.25(b)(1).

On the other hand, assuming that the assessment and care plan are accurate, R246 did not have a skin breakdown at the time of her admission.  Per the facility policy, staff should have been checking the resident’s skin a minimum of weekly and documenting the skin checks on the Treatment Administration Record.  CMS Ex. 27 at 3.  The facility produces no records showing that such skin checks were performed earlier than October 1, 2022.  See CMS Ex. 30 at 26.

A pressure ulcer on R246’s foot is mentioned, for the first time, on August 23, 2022, in the form of a physician order.  Although the facility’s policy required weekly skin assessments, the record includes no evidence of any assessment at that time, even after the wound was identified.  CMS Ex. 27 at 3; CMS Ex. 30 at 8.  No changes were made to the resident’s care plan.  CMS Ex. 30 at 14-15.

The physician order directs staff to cleanse the resident’s right first metatarsal with wound cleanser and gauze, to apply betadine three times a week, and to leave the wound open to air.  CMS Ex. 30 at 8.  Petitioner produces no records showing that staff followed the physician order in August or September 2022.  Medication Administration Records

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for October and November 2022 indicate that nurses applied the betadine as ordered during those months, ending the treatment on November 11, 2022.  CMS Ex. 30 at 9-10.

A second skin assessment, dated November 12, 2022, indicates that the resident no longer had the wound on her foot.  Nevertheless, with a Braden score of 11, she was at high risk for developing pressure ulcers.  The assessment calls for putting the resident on a turning/repositioning program but otherwise does not propose changes to her care plan.  CMS Ex. 30 at 11-12.

At the time of the survey, Surveyor Anele asked the facility to produce records of weekly skin checks for R246.  The facility did not do so, even though the surveyor requested them three times.  CMS Ex. 37 at 3 (Anele Decl. ¶ 20).  Although Petitioner characterizes the surveyor’s statement as “absolutely inaccurate,” it proffers no reliable evidence establishing that the facility produced the documents when asked.  P. Br. at 12.  Petitioner points to a February 23, 2023 note from the DON, apparently submitted as part of the Independent Informal Dispute Resolution (IIDR) process.  P. Br. at 12.  The note says, “I provided the surveyor with a copy of the November nurses skin check documentation as well as a shower sheet completed by the [nurse aide] dated 11/28/22 noting there were no wounds at that time.”  CMS Ex. 30 at 30.

The DON did not submit a written declaration, which undermines Petitioner’s efforts to counter Surveyor Anele’s sworn testimony.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17-18 (2010) (pointing out that the facility could have but did not present employee testimony to refute the statements the surveyors claimed they made).  But even if I accepted the DON’s note as reliable, the limited documents she purports to have produced do not establish that the facility had been consistently taking all necessary precautions to prevent pressure sores.

During the IIDR proceeding, Petitioner produced documents titled “Treatments Administration History” for October and November 2022.  Those documents indicate that, during October and November 2022, staff conducted a skin inspection every other day (except Friday, November 11).  CMS Ex. 30 at 25, 26.  Petitioner also produced three “weekly shower sheets.”  One is dated November 21 and indicates that a shower was given and the resident had no skin tear or wound present.  CMS Ex. 30 at 28.  Another is dated November 28 and indicates that a shower was given and the resident had no skin tear or wound present.  CMS Ex. 30 at 27.  The third indicates that a shower was given, that a skin tear or wound was present, and that the nurse aide notified the nurse.  The problem is that the document is not dated.  Petitioner maintains that the document is dated December 5, 2022, but I find nothing on the face of the document to confirm that.  Nor does the sheet indicate where the wound was located.  CMS Ex. 30 at 29.

In any event, on December 1, 2022, based on a nurse aide’s report, an RN assessed a purportedly new wound on R246’s right foot – a stage 3 pressure ulcer that measured

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2 cm. x 1.5 cm.  CMS Ex. 30 at 24.13  Whether this pressure ulcer developed and deteriorated to stage 3 so quickly is an open question.  Surveyor Anele points to her separate interviews with the facility’s DON and with a registered nurse.  Each told her that the wound should have been discovered before it reached Stage 3.  CMS Ex. 37 at 3 (Anele Decl. ¶ 21).  The surveyor’s contemporaneous notes reflect those interviews.  CMS Ex. 29 at 1, 3.  Consistent with these comments, Surveyor Anele opines that, had “facility skin checks caught R246’s pressure sore earlier, it could have been treated to keep if from getting to stage 3.”  CMS Ex. 37 at 3 (Anele Decl. ¶ 23).

Again, the facility nurses do not submit written declarations denying that they made these statements.

Petitioner nevertheless maintains that the wound “did acutely develop as a stage 3 wound” and was unavoidable.  P. Br. at 13.  Petitioner points to two statements from the wound care physician – again, these are not proffered in a written declaration.  In a February 21, 2023 note (weeks after the survey identified the deficiency), which was submitted to the IIDR proceeding, the physician writes that “[a] stage 3 wound may acutely appear[,] especially in a patient with complex medical comorbidities.”  CMS Ex. 30 at 16.  Notably, the physician does not say that R246’s wound “acutely” appeared.

On the same day, the physician wrote, in a “non-visit” note (the resident had moved to another facility), that R246 was at “high risk for acute skin injury[,] despite maximal efforts in place by facility.”  CMS Ex. 30 at 17.  The physician’s note of “maximal efforts” is offered without foundation and is thus entitled to little, if any weight.  She does not explain what those efforts entailed nor how she learned of them.  CMS Ex. 30 at 17.  Again, if Petitioner wanted to establish that the facility employed “maximal efforts” to prevent skin injury, it could have produced as a witness an actual facility employee with direct knowledge of the efforts taken.14 

The physician also wrote that “[r]epeated noncompliance to off loading surface and repositioning has also complicated wound healing timeline.”  CMS Ex. 30 at 17.  I assume that she is referring the resident’s (and not the facility’s) “repeated

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noncompliance” (discussed below).  But this “defense” presents an additional problem for the facility:  R246’s assessments do not identify behavior as a problem that contributed to her developing pressure sores, and her care plan does not identify her “noncompliance” as an issue nor include strategies to address the purported problem.

A care plan entry, dated December 1, 2022, indicates that the resident has a pressure ulcer on her right metatarsal.  CMS Ex. 25 at 7.  Entries dated December 7, 2022, list the following interventions: 

• Apply treatment/dressings per the physician order.
• Assess the resident for pain related to the pressure ulcer or its treatment.  Administer analgesics as ordered.
• During wound care, assess the pressure ulcer for stage, size (length, width, and depth), presence/absence of granulation tissue and epithelization, and condition of surrounding skin.
• Diet as ordered.
• Encourage/assist to turn and reposition at frequent intervals every shift and as needed for comfort.

CMS Ex. 25 at 7.

Notably, these types of interventions were not in place when R246 was admitted, purportedly with a pressure sore on her foot.  Nor were they added to her care plan on August 23, 2022, by which time, she had unquestionably developed a pressure sore on her foot.  CMS Ex. 30 at 14-15.

By December 6, 2022, R246 had a stage 4 pressure wound on her right foot, with moderate serous exudate.  The wound measured 1.9 x 2 x 0.5 centimeters (surface area: 3.80 square centimeter) and included 15% devitalized necrotic tissue.  CMS Ex. 30 at 18-19.  The wound required a “surgical excisional debridement procedure” (surgical removal of the dead tissue).  CMS Ex. 30 at 19.  The wound care specialist suggests that the resident’s behaviors were a problem:  she writes that facility nursing staff reported that the resident would kick off her air boots.  CMS Ex. 30 at 19.  Again, the resident’s care plan did not mention air boots.  See CMS Ex. 25 at 7; CMS Ex. 30 at 14-15.  Nor does the record include any evidence that the facility developed a care plan to address this behavioral issue.  In fact, aside from the physician’s second-hand note of what unidentified nursing staff “reported,” the record includes no evidence of this behavior.

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A follow-up physician visit, conducted on December 13, 2022, indicates that the resident refused boots but used a pillow.  CMS Ex. 30 at 21.  The resident was agitated during the exam.  The wound size was larger than it had been the week before (2.1 x 2 x 0.5 centimeters – surface area of 4.2 square centimeter).  Heavy serous exudate and significant necrotic tissue remained.  The physician performed another excisional debridement.  CMS Ex. 30 at 22.

R246’s care plan was amended on December 15, 2022.  A new entry identified R246 as at high risk for pressure ulcers, related to her level of dependence, incontinence, impaired physical mobility, confinement to bed “most of the time,” impaired cognition, decreased tissue perfusion, impaired circulation, decreased cardiac output, imbalances/poor nutritional status, and other comorbidities.  CMS Ex. 25 at 3.  The care plan set as its goal that the resident’s skin would “remain intact[,] without evidence of redness, irritation, maceration[,] or open areas.”  CMS Ex. 25 at 3.  To achieve this goal, the plan called for the following approaches: 

• Avoid shearing resident’s skin during positioning, transferring, and turning.
• Conduct a systematic skin inspection daily and weekly.  Pay particular attention to the boney prominences.
• Keep boney prominences from direct contact with one another, using pillows and/or wedges.
• Keep clean and dry as possible.  Minimize skin exposure to moisture.
• Keep resident off boney areas.
• Provide incontinence care after each incontinent episode.  Avoid friction to skin.
• Provide supplements as ordered.
• Reduce friction injuries by using lotions and/or skin cream barriers daily.
• Report any signs of skin irritation and/or breakdown (sore, tender, red, or broken areas).
• Turn and reposition every two hours or more frequently
• Use heel protectors and/or pillows to relieve pressure on heels.
• Use hoyer device and/or flat sheets to move the resident in bed.

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• Use moisture barrier product to perineal area.
• Use pillows between knees and boney prominences to avoid direct contact.
• Use pillows/wedges for pressure reduction when resident is in bed.

CMS Ex. 25 at 3-6.  Again, the revised care plan does not mention the resident’s “repeated noncompliance to off loading surface and repositioning.”  CMS Ex. 225; CMS Ex. 30 at 17.

The sudden appearance of a pressure sore – particularly a pressure sore that first appears at an advanced stage – constitutes evidence sufficient to establish CMS’s prima facie case that, in the care it provided to R246, the facility was not in substantial compliance with section 483.25(b)(1).  For its part, Petitioner has not shown that it was taking all necessary precautions to prevent new pressure sores from developing and to promote healing and prevent infection of the pressure sore that developed.  Thus, with respect to R246, it has not met its burden of proving, by a preponderance of the evidence, that it was in substantial compliance with section 483.25(b)(1).  In fact, as the above discussion shows, much of the evidence Petitioner points to and the assertions it makes establish the opposite.  See Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d, 129 F. App’x 181 (6th Cir. 2005); Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d, Hillman Rehab. Ctr. v. U.S. Dep’t of Health and Hum. Servs., No. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999).

3. The facility was not in substantial compliance with 42 C.F.R. § 483.25(c) because it did not provide appropriate services and equipment to multiple residents to increase or prevent further decreases to their limited ranges of motion.

In addition to protecting its residents from pressure sores, the quality-of-care regulation includes requirements for improving or maintaining a resident’s mobility and range-of-motion: 

• The facility must ensure that a resident who enters the facility without limited range of motion does not experience a reduction unless the resident’s clinical condition demonstrates that it is inevitable.
• The facility must ensure that a resident with limited range of motion receives appropriate treatment and services to increase range of motion and/or prevent further decreases.

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• A resident with limited mobility must receive appropriate services, equipment, and assistance to maintain or improve mobility, with the maximum practicable independence, unless a reduction in mobility is demonstrably unavoidable.

42 C.F.R. § 483.25(c).

Facility policy:  restorative programming.  The facility had in place a policy titled “Restorative Programming.”  It requires that all residents be assessed upon admission, quarterly, and with any significant change in condition to determine their level of functioning with respect to activities of daily living.  Based on their abilities, residents are placed in restorative programming in order to provide them with necessary treatment and services so that they maintain or improve their individual level of functioning.  Programs include mobility, bathing, dressing, eating, elimination, and range of motion.  CMS Ex. 27 at 4.

Among other requirements, when a need for skilled therapy services is identified, the physician must be contacted for appropriate orders; residents with identified needs are placed in an active restorative program or a maintenance restorative program; each resident in a restorative program has a care plan with identified goals and approaches for staff to follow.  CMS Ex. 27 at 4.

The facility’s failure to provide needed equipment and services.  CMS cites instances of residents who required – but were not provided – equipment necessary to maintain or improve range of motion.  Among the required equipment were hand splints and handrolls.15  CMS Ex. 26.  When a resident has contractures, hand splints or hand rolls help prevent the contractures from worsening.  CMS Ex. 36 at 2 (Ndikim-Ajide Decl. ¶ 12).  The devices help preserve the resident’s ability to use his/her hands.  CMS Ex. 39 at 3 (Ivy Decl. ¶ 13).

Resident 80 (R80).  R80’s care plan identified her as at risk for developing contractures because of her physical inactivity and cognitive impairment.  CMS Ex. 18 at 1.  To help maintain her joint mobility and prevent contractures, the facility determined that she have a hand roll for her right hand, and the restorative nurse confirmed that she required hand rolls to prevent further contractures.  CMS Ex. 2 at 7; CMS Ex. 26: See CMS Ex. 36 at 2 (Ndikim-Ajide Decl. ¶ 6).  Yet, on two consecutive days, Surveyor Rosemary Ndikim-Ajide observed that both of her hands were contracted and that she was not wearing splints or handrolls.  CMS Ex. 36 at 2 (Ndikim-Ajide Decl. ¶ 9).

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Resident 37 (R37).  R37 was a 73-year-old woman suffering from rheumatoid arthritis and other serious disorders.  CMS Ex. 13 at 1.  Her care plan indicated that she was at risk for developing or had developed “actual contractures related to [her diagnosis and] physical inactivity.”  CMS Ex. 13 at 3.  Her physician ordered a restorative splint for her left wrist.  CMS Ex. 13 at 2; see CMS Ex. 26.  Her care plan reflected the order, directing that the splint be applied to her left wrist during the mornings and when she requested it.  CMS Ex. 13 at 3.  Yet, Surveyor Yokie Ivy observed the resident in bed with her hands contracted.  The resident told Surveyor Ivy that she wanted to have the splint on.  CMS Ex. 39 at 3 (Ivy Decl. ¶ 16).

Resident 64 (R64).  R64 was a 58-year-old woman suffering from Parkinson’s Disease and other serious disorders.  CMS Ex. 16 at 1.  Her care plan confirms that she was at risk for developing contractures related to her physical inactivity, extreme weakness, and cognitive impairments.  CMS Ex. 16 at 2.  Among the interventions listed in her care plan, staff were to apply bilateral hand rolls.  CMS Ex. 16 at 3; see CMS Ex. 26.  On February 1, 2023, Surveyor Ivy observed R64 in bed with both hands contracted.  She did not have hand rolls in place.  CMS Ex. 39 at 4 (Ivy Decl. ¶ 18).

Petitioner has not challenged any of these findings.  Because the facility was not providing these residents with the equipment they needed to maintain or improve their ranges of motion, it was not in substantial compliance with section 483.25(c).

4. The facility did not comply with 42 C.F.R. § 483.25(i) because it did not follow its own policies nor professional standards of practice in providing respiratory care.

Program requirement:  42 C.F.R. § 483.25(i) (Tag F695).  Among its requirements, the quality-of-care regulation provides that the facility must ensure that a resident who requires respiratory care is provided such care “consistent with professional standards of practice, the [individual’s] comprehensive person-centered care plan, [and] the resident[’s] goals and preferences.  42 C.F.R. § 483.25(i).

Facility policy:  Oxygen Therapy.  The facility had in place an Oxygen Therapy policy describing how it would provide a supplemental source of oxygen to residents whose physicians ordered it.  CMS Ex. 27 at 1-2.  Among the equipment needed was connecting tubing, which attached to the tank flow meter on one end and to a cannula or mask on the other.  CMS Ex. 27 at 1.  The policy required that the oxygen set-up (cannula or mask and tubing) be changed “weekly and marked with the date.”  CMS Ex. 27 at 2 (emphasis added).

Changing this equipment is necessary to prevent the growth of microorganisms and mold, which could be blown into a resident’s nostrils, causing infection.  By marking the

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cannulas with the date, the staff would know when to change the equipment.  CMS Ex. 38 at 2 (Villanueva-Libang Decl. ¶ 10).

Notwithstanding the facility policy, Surveyor Amery Villanueva-Libang observed four residents wearing undated oxygen cannula.  CMS Ex. 38 at 2 (Villanueva-Libang Decl. ¶ 9).  The well-settled notion that a facility’s failure to follow its own policies can constitute a deficiency under section 483.25 applies to its respiratory care policies.  Cedar Lake Nursing Home, DAB No. 2344 at 8 (2010).

Petitioner has not challenged the surveyor testimony nor otherwise responded to CMS’s evidence or argument.  The undisputed evidence therefore establishes that the facility was not in substantial compliance with section 483.25(i).16

5. The facility did not comply with 42 C.F.R. § 483.25(d) because it did not protect its residents from harmful substances and other contraband.

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  Another provision of the quality-of-care regulation requires 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 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 Ctr. v. Leavitt, 127 F. App’x 843 (6th Cir. 2005).

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Facility Policy:  Contraband Check.  The facility had in place a policy titled “Contraband Check.”  Its stated purpose was “to provide all residents, staff, and visitors safety from the presence of any dangerous substances and/or objects.”  Among the examples of items considered contraband were “weapons, sharps, hazardous or potentially dangerous materials or substances, alcohol or illegal drugs.”  CMS Ex. 54.

The policy sets forth procedures for searching persons and resident rooms: 

• When “reasonable suspicion exists” that a person entering the facility possesses contraband, that person or the person’s belongings (bags, purses, boxes, etc.) may be searched.
• An acceptable resident search includes patting down the resident’s body (avoiding private sexual areas), checking pockets and anything the resident may be carrying into the facility.  Staff are not authorized to conduct cavity searches.
• When contraband is found, or there is reason to believe that contraband is likely to be present, a room search is authorized with two staff members present.  The resident may be present during the search.
• Any resident who violates the contraband policy may be subject to random searches of “person,” room, and belongings.
• Any resident who violates the contraband policy may be subject to searches (of person or belongings) when returning from the community.
• All contraband will be preserved, inventoried, and documented in the resident’s clinical record.  The facility administrator or designee will be notified.
• If contraband is found, the facility administrator or designee may call the police.

Id.  Notwithstanding this policy, facility residents had access to marijuana, contraband cigarettes, and, in one case, a large knife, and facility staff took few steps to protect residents from these dangerous substances and objects.

Resident access to marijuana:  Resident 1 (R1).  R1 was a 31-year-old woman, admitted to the facility on October 25, 2022 and readmitted on March 12, 2023.  CMS Ex. 47 at 1.17  At the time of her October 2022 admission, R1 had fractured her right

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lower leg.  CMS Ex. 47 at 60.  She suffered from acute respiratory failure, obesity, schizoaffective disorder, bipolar type, unspecified psychosis “due to a substance or known physiological condition,” and anxiety disorder.  She experienced suicidal ideations.  CMS Ex. 47 at 2, 32, 77.  She took antipsychotic medications.  CMS Ex. 47 at 26.

Although she was not supposed to leave the facility unsupervised, R1 continually went into the community without supervision.  CMS Ex. 47 at 52.  A marijuana dispensary was located a block and a half from the facility.  CMS Ex. 55 at 3 (Cura Decl. ¶ 16).

R1’s serious psychiatric problems were exacerbated by her use of marijuana.  Her sister told surveyor Ana Cura that in February, her sister “got so high” that she “got paranoid and had to be hospitalized.”  CMS Ex. 55 at 2 (Cura Decl. ¶ 10).  R1’s treatment records confirm this.  On February 17, 2023, a psychiatric nurse practitioner described R1 as “withdrawn and unengaged.”  CMS Ex. 47 at 70.  The resident admitted to increased hallucinations, which she described as voices.  She was anxious, not maintaining good eye contact.  CMS Ex. 47 at 70.  On February 19 and 20, 2023, R1 reported feeling suicidal.  She was transferred to the hospital, returning on February 27, 2023.  CMS Ex. 47 at 68-69.

R1’s hospital admission records indicate that she used marijuana.  CMS Ex. 48 at 1.  She told the examining physician that she “smoked marijuana every day and sometimes ‘squares’” (cigarettes).  CMS Ex. 48 at 10.  She tested positive for marijuana.  CMS Ex. 48 at 17.  The physician described her as “confused” and “actively self-destructive with some plans . . . .”  CMS Ex. 48 at 10.  Her admitting diagnoses included Cannabis use disorder and tobacco use disorder.  CMS Ex. 48 at 11.

The facility did not subsequently inform R1’s psychiatric nurse practitioner that R1 had tested positive for marijuana.  The nurse practitioner told Surveyor Cura that marijuana use was a concern given the resident’s psychiatric history.  “[I]t could affect R1’s mood changes and exacerbate psychiatric symptoms and anxiety.”  CMS Ex. 55 at 3 (Cura Decl. ¶ 13).

Although it had a copy of R1’s hospital records, the facility did nothing to address R1’s obvious possession and use of marijuana.  It did not investigate how she obtained the drug nor follow any of the procedures outlined in the facility’s contraband policy.  In fact, the facility’s Administrator, DON, and Social Services Director dismissed the significance of the residents’ access to marijuana, all suggesting that marijuana may not be contraband because it’s “legal in Illinois.”  CMS Ex. 53 at 1; CMS Ex. 55 at 3 (Cura

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Decl. ¶ 15).  In fact, marijuana, classified as a Schedule I controlled substance, is not legal under federal law.  21 U.S.C. § 844.

And even if it were legal, the facility considered other substances (cigarettes and alcohol) to be contraband, although they are legal.  According to treatment records, the facility did, in fact, prohibit marijuana.  CMS Ex. 47 at 53, 57.  Moreover, because R1 could not safely smoke the drug, the facility was required to address her abuse of it.  But the facility did not address the issue in her care plan until later.  Nor did it implement its contraband policy in any noticeable way to keep the contraband substance out of the facility.  The facility took no steps to eliminate or reduce this foreseeable risk of harm, which put it out of substantial compliance with section 483.25(d).

R1’s abuse of marijuana came to a head on March 7, 2023.  The foster care worker for her children reported that she was under the influence of drugs during a video call with her children.  When questioned, she admitted to smoking marijuana before the call.  The Social Service Designee warned her that smoking marijuana was not permitted and that her doing so would “look bad” in front of the court and her kids and jeopardize her petition for independent community access.  The Social Service Designee reported that R1’s affect was “blunted,” and she had no response other than “I don’t know.”  CMS Ex. 47 at 53, 57.

That day, a drug screen was ordered.  CMS Ex. 47 at 6.  R1 again tested positive for marijuana.  CMS Ex. 47 at 11.

For the first time, the facility amended R1’s care plan to address her “history of inappropriate marijuana use,” referring to her smoking marijuana prior to a court-monitored video call with her children.  The plan’s goal was that the resident would refrain from inappropriate substance use.  Staff were instructed to monitor her for signs of substance use and, if suspected, to report to her physician immediately.  CMS Ex. 47 at 16.

Yet, no evidence suggests that the facility subsequently followed any of its procedures for keeping the contraband out of the facility and away from this vulnerable resident.

On March 17, 2023, R1 was involved in a physical altercation with her sister, who was there in anticipation of R1’s discharge.  Staff called the police.  During her interview with the police, R1 reported suicidal ideation (“I’m gonna hang myself or cut myself.”).  Police called 911, and R1 was sent to the hospital, returning later that evening.  CMS Ex. 47 at 51; CMS Ex. 55 at 2 (Cura Decl. ¶ 8).  R1’s sister subsequently complained to Surveyor Cura:  “how [is] it . . . possible that [R1] was here for rehabilitation and was instead ‘getting high’ and having sex.”  CMS Ex. 55 at 2 (Cura Decl. ¶ 10).

On March 18, 2023, R1 was discharged from the facility.  CMS Ex. 47 at 52.

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Resident access to marijuana:  Resident 2 (R2).  R2 was a 43-year-old man, admitted to the facility on December 7, 2022, and readmitted on March 3, 2023.  CMS Ex. 50 at 1-2.  He suffered from a long list of impairments, including uncontrolled diabetes mellitus, bipolar disorder, and a history of alcohol and polysubstance abuse.  He did not comply with medical treatment, which included his refusing to take insulin, as ordered.  As a result of his uncontrolled diabetes, his right leg had been surgically amputated below the knee.  He had sepsis, anemia, Vitamin D deficiency, peripheral vascular disease, and necrotizing fasciitis of the abdominal wall.  CMS Ex. 50 at 1-2, 20.  Among multiple medications, he was administered the narcotic, hydrocodone with acetaminophen, for pain.  CMS Ex. 50 at 6, 72.

A nurse practitioner warned him that he could lose another limb if he continued to drink soda, eat sugar, and refuse blood sugar testing and insulin, but he said that he did not care.  He showed her the soda in his bedside table and said that he would do whatever he wanted.  CMS Ex. 50 at 71-72.

In violation of the facility’s safe-smoking policies, R2 smoked in his room.  CMS Ex. 50 at 19.

R2 also kept marijuana in the facility.  On October 2, 2022, staff smelled marijuana throughout the hallway near his room.  His room had a strong odor of marijuana.  In addition to the resident’s cigarettes and lighter, staff found marijuana and a variety of marijuana products.  Although R2 demanded their return, staff advised him that the items were not allowed in the facility and could not be smoked in the facility.  Staff told R2 that his community access was temporarily revoked.  CMS Ex. 50 at 127.  His community access was reinstated on November 1, 2022.  CMS Ex. 50 at 126.  Based on R2’s treatment records, this is the only time staff intervened to address his possession of contraband.

Five months later, on March 7, 2023, the facility finally updated R2’s care plan to reflect his polysubstance abuse and possession of marijuana.  The proposed approaches were limited and general.  They included educating the resident, setting expectations and limits (which were not specified), and discussing (although not implementing) potential consequences.  CMS Ex. 50 at 16.  Considering the resident’s response to the prospect of his losing another limb, such interventions seem inadequate to address the problem.  See Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445, 451 (7th Cir. 2010) (finding inadequate interventions (such as “verbal cues” and “redirect”) that had proved ineffective in keeping safe a mentally ill resident).

Notwithstanding R2’s significant history of possessing and smoking contraband, no evidence suggests that staff searched his room again or that they ever searched him when he returned from the community.  The Social Services Director told Surveyor Cura that

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R2’s possession and use of marijuana “hadn’t been a concern.”  CMS Ex. 55 at 4 (Cura Decl. ¶ 20).  This is puzzling.  In addition to his marijuana smoking, R2 also violated the facility’s smoking regulations by smoking in his room.  Yet the facility did not follow its contraband policy to ensure that he did not keep cigarettes and lighters in his room or on his person.  CMS Ex. 50 at 19; CMS Ex. 54.  Moreover, although R2 was in a relationship with R1, facility staff did not ask whether she was getting her marijuana from him.  CMS Ex. 55 at 4 (Cura Decl. ¶ 19); see CMS Ex. 50 at 120.

Resident 3 (R3) (and other residents’) access to a large knife.  R3 was a 63-year-old man suffering from a long list of disorders, including peripheral vascular disease, anemia, history of lung cancer, and chronic obstructive pulmonary disease.  CMS Ex. 52 at 7.  Surveyor Ana Cura saw a large kitchen knife (not a table knife) sitting out, on the top of the dresser in his room.  CMS Ex. 55 at 5 (Cura Decl. ¶¶ 23, 24).  The resident told her that he “was safe to use these things.”  CMS Ex. 53 at 4.  Surveyor Cura could not find evidence that R3 had been assessed as safe to possess a large knife.  More important, the knife was in full view.  Both the Social Services Director and the Facility Administrator agreed that R3 should not have had the knife, particularly since other residents could have had access to it.  CMS Ex. 42 at 12; CMS Ex. 53 at 3; CMS Ex. 55 at 5 (Cura Decl. ¶ 24).

Again, Petitioner has not challenged the surveyor testimony or otherwise responded to CMS’s evidence or argument regarding this deficiency.  The undisputed evidence therefore establishes that the facility was not in substantial compliance with section 483.25(d) because, contrary to its policies, it did not protect its residents from harmful substances and other contraband.

6. The March survey – which took place from March 17 through 22, 2023 – did not establish that the facility returned to substantial compliance and did not begin a new survey cycle.

Citing the state agency notice letters (discussed above), Petitioner argues that, based on the “March 20, 2023” revisit, the facility returned to substantial compliance on February 27, 2023; that this determination closed the survey cycle; and that the March 22, 2023 survey represents a new survey cycle.  P. Br. at 14-16.  In Petitioner’s view, this means that, despite survey findings that, from October 2022, the facility was not in substantial compliance with section 483.25(d), the facility was in substantial compliance with program requirements from February 27 through March 22, 2023.

CMS, however, views the revisit and complaint investigation as one survey, completed on March 22, 2023 survey.  See P. Br. at 7 (asserting that the survey “started out as a revisit to the February 3, 2023 survey.”).  Surveyor notes indicate that the surveyors were at the facility, conducting the survey, from March 17 through March 22, 2023.  The notes show that the surveyor investigated a complaint (42 C.F.R. § 483.25(d)) and reviewed the

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deficiencies cited during the February 3 and 8, 2023 surveys, to see if they had been corrected.  CMS Ex. 53.  In CMS’s view, the facility had not returned to substantial compliance because of the section 483.25(d) deficiency.

The facility plainly had not returned to substantial compliance.  As the Departmental Appeals Board has explained, a finding that previously-cited deficiencies have been corrected is not the same as a finding that the facility has achieved substantial compliance.

Even assuming the State agency determination is correct as to correction of the previously cited deficiencies (and [the facility] has not provided any independent evidence it is), the Board has made it clear that “a finding that deficiencies have been corrected is not the same as a determination that a [facility] has achieved substantial compliance with all participation requirements.’”  

W. Tex. LTC Partners, Inc., DAB No. 2652 at 18 (2015) (citing Meadowbrook Manor – Naperville, DAB No. 2173 at 13 (2008)) (emphasis added), aff’d sub. nom. on other grounds, Butterfield Healthcare II, Inc. v. Johnson, No. 1:08cv-03604 (N.D. Ill. June 16, 2009).

In Meadowbrook, between January and June 2006, the facility underwent multiple surveys and revisits.  On March 7, 2006, the state agency performed a revisit survey and found that the deficiencies cited during three earlier surveys had been corrected.  Ten days later, however, a March 17 complaint investigation found a new deficiency, and an April 7, 2006 complaint investigation found yet another deficiency.  The facility argued, as Petitioner argues here, that March 7 survey established that the facility returned to substantial compliance on February 16, which created a “gap period” from February 16 through March 16, 2006.  Meadowbrook, DAB No. 2173 at 10-11.  The Board rejected the argument, finding it incompatible with the April 7 finding that cited noncompliance began on January 6, 2006, and continued.  Id. at 11.

Moreover, even if I agreed that the facility achieved short-term substantial compliance (which I do not), short-term compliance does not establish that the facility has returned to substantial compliance.  A facility is required to maintain substantial compliance.  In enacting nursing home reform, Congress expressed particular frustration with facilities’ erratic compliance histories.  See H.R. Rep. No. 00-391(l), 100th Cong., 1st Sess. at 471 (1987) (expressing the goal of eliminating the “yo-yo” or “roller coaster” phenomenon);

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Fla. Agency for Health Care Admin. v. Bayou Shores SNF, LLC, 828 F.3d 1297 at 1325-26 (11th Cir. 2016); Heartland Manor at Carriage Town, DAB No. 1664 (1998).18 

Finally, “CMS’s findings of noncompliance take precedence over those made by the State.”  W. Tex., DAB No. 2652 at 18; Lopatcong Ctr., DAB No. 2443 at 12-13 (2012) (finding that the state agency’s determination that the facility was in substantial compliance is not binding on CMS); 42 C.F.R. § 488.452(a)(2)(i).

7. CMS may impose remedies – up to and including termination – when the facility is not in substantial compliance with Medicare program requirements.

Petitioner asserts that its deficiencies were not sufficiently serious to warrant CMS’s imposing remedies, claiming that, aside from the deficiency cited at scope-and-severity level G, “[t]here are no citations that remain in the initial February 3, 2023 survey that would justify the imposition of a CMP, especially in light of CMS’s practice of imposing CMPs and other remedies only for citations of higher scope and severity.”  P. Br. at 7.

The Medicare statute and regulations say otherwise.  Recognizing that any deficiency posing the potential for causing “more than minimal harm” is not trivial, the statute authorizes CMS to impose a remedy whenever the facility is not in substantial compliance with program requirements.  Act §§ 1819(h)(2), 1866(b)(2)(A); 42 C.F.R. § 488.412; see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 21 (2000); 42 C.F.R. §§ 488.301, 488.402, 488.406; see Beverly Health & Rehab. Servs. v. Thompson, 223 F. Supp 2d 73, 111 (D.D.C. 2002) (holding that the agency’s authority to terminate “may span all noncompliant facility behavior.”).

Thus, when it finds that the facility is not in substantial compliance – which includes finding even one D-level deficiency – CMS may impose a CMP (or other remedy), and I have no authority to review CMS’s determination to impose a CMP.  42 C.F.R. § 488.438(e).  That exercise of its discretion is not diminished nor made reviewable because the agency has, at times, been reluctant to impose penalties.

8. The remedy imposed is reasonable.

Determining whether the remedy is reasonable.  To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (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

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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 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 section 488.438(f) 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.  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. 1638 at 8 (1999).

I determine whether a penalty is reasonable, based on the per-day penalty, not the total accrued penalty.  Copperas Cove LTC Partners, Inc., DAB No. 3049 at 43 (2021); Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016).

The burden is on the facility “to demonstrate, through argument and submission of evidence addressing the regulatory factors, that a reduction is necessary to make the CMP amount reasonable.”  Heritage Plaza Nursing Ctr., DAB No. 2829 at 22 (2017) (quoting Oaks of Mid City Nursing & Rehab. Ctr., DAB No. 2375 at 26-27 (2011)).

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, May 18, 2023.  CMS Ex. 1; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).  Here, CMS imposed a per-day CMP of $1,985, which is at the low end of the range for per-day CMPs ($120 to $7,195).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 87 Fed. Reg. at 15,111 (Mar. 17, 2022).

Applying the regulatory criteria to this case.  Considering the relevant factors, CMS has established that the relatively low CMP is reasonable.

History.  The facility has a poor compliance history.   The CASPER shows, among other citations, prior deficiencies in quality-of-care and infection control (March 10, 2022 survey, January 2019); prior deficiencies in mobility and infection control (November 2019); as well as repeated LSC deficiencies (March 10, 2022, November 2019).  CMS Ex. 6 at 3-4.

In addition to the surveys listed in the CASPER, Petitioner appealed the findings of two complaint investigation surveys, completed on May 21, 2021, and September 9, 2021.  In each appeal, an ALJ found that the facility was not in substantial compliance with the quality-of-care regulation.  Generations at Elmwood Park, DAB CR6227 (2023); Generations at Elmwood Park, DAB CR6333 (2023).  DAB CR6333 is particularly noteworthy because the quality-of-care deficiency included the facility’s failure to take

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adequate precautions to prevent pressure sores.  In that case, a wound care physician eventually discovered necrotic tissue in the resident’s foot.

The facility’s significant history, particularly its repeated quality-of-care deficiencies, justifies a CMP well above the minimum.

Petitioner presents no evidence that its current financial condition affects its ability to pay the CMP.

With respect to the remaining factors, this case involved multiple surveys and a significant number of deficiencies.  I have discussed in some detail the quality-of-care deficiencies.  Some of those deficiencies required little effort to avoid, and could have made an enormous difference to the well-being of the residents involved: 

• not ensuring that R72’s heel protectors were in place to prevent additional pressure sores from developing;
• not ensuring that residents with hand contractures had hand rolls in place to prevent the contractures from worsening and to help preserve their abilities to use their hands; and
• not dating respiratory equipment to prevent infection.

The facility is culpable for staff’s failure to implement these simple but critically important interventions.

Infection-control deficiencies were significant and put residents at risk.  Among the survey findings: 

• While caring for a resident who required “Contact Plus” precautions (hand hygiene, isolation gown, gloves, removal of gloves and gown when leaving the room, and hand washing with soap and water when leaving the room), a nurse aide failed to perform hand hygiene, touched clean linen with dirty gloves, touched the linen cart with dirty gloves, and left the room without washing her hands and wearing the personal protective equipment.
• In another “Contact Plus” room, the Social Services Director was observed without gloves or gown.  She did not perform hand hygiene when she left the room.
• When preparing medications for several residents, a registered nurse repeatedly did not perform hand hygiene when changing gloves.

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• A respiratory therapist did not perform hand hygiene before donning gloves; she removed the gloves and left the room, going to a kiosk to use a keyboard, without performing hand hygiene.

This disregard of handwashing protocols was not isolated.  Multiple staff – including professional staff – were implicated.  CMS Ex. 2 at 14-20.  For this, the facility is also culpable.

Finally, the surveyor found multiple LSC deficiencies.  Nine involved a pattern of substantial noncompliance, and ten were widespread.  The problems included staff training, emergency preparedness, building egress, and fire safety.  Utilities were not properly maintained.  CMS Ex. 40.

Thus, considering the section 488.438(f) factors, a substantial penalty is justified.  I therefore conclude that the low-end penalty imposed here is reasonable.

Conclusion

From January 31 through April 2, 2023 the facility was not in substantial compliance with Medicare program requirements.  The penalty imposed – $1,985 per day – is reasonable.