Christian Health Care Center, DAB CR6786 (2026)

DECISION

Christian Health Care Center (hereinafter referred to as “Petitioner” or “the facility”) challenges the Centers for Medicare & Medicaid Services’ (CMS’s) determination of substantial noncompliance with Medicare participation requirements.  Petitioner also challenges the imposition of a $15,975 per-day civil money penalty (CMP) from October 6, 2021 through October 9, 2021; a $1,515 per-day CMP from October 10, 2021 through December 16, 2021; and the loss of its approval for its Nurse Aid Training and Competency Evaluation Program (NATCEP).

For the reasons set forth below, CMS’s motion for summary judgment is granted and Petitioner’s cross-motion for summary judgment is denied. The undisputed evidence establishes that there is a basis for the imposition of enforcement remedies, CMS’s finding of immediate jeopardy is not clearly erroneous, and the per-day CMP amounts are reasonable. 

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I.  Background and Procedural History

Petitioner is a skilled nursing facility (SNF) located in Wyckoff, New Jersey, that participates in the Medicare program.  CMS Exhibit (Ex.) 2 at 1.  The New Jersey State Department of Health (state agency) completed a complaint investigation survey of Petitioner’s facility from October 6, 2021 through October 18, 2021.  CMS Ex. 2 at 1.  The state agency survey found, and CMS later agreed, that the facility was not in substantial compliance with the following Medicare participation requirements: 

• 42 C.F.R. § 483.12(a)(1) (Tag F0600) – Free from abuse and neglect, scope and severity (s/s) level K
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F0607) – Develop/implement abuse/neglect policies, s/s level K
• 42 C.F.R. § 483.70 (Tag F0835) – Administration, s/s level L
• 42 C.F.R. § 483.25(d)(1)(2) (Tag F0689) – Free of accident hazards/supervision/devices, s/s level G
• 42 C.F.R. § 483.21(b)(2)(i)-(iii) (Tag F0657) – Care plan timing and revision, s/s level G.  

CMS Ex. 2 at 2.  By letter dated December 10, 2021, CMS notified Petitioner of the noncompliance determinations and resulting remedies.  CMS Ex. 2 at 1.  A revisit survey was conducted on January 18, 2022.  By letter dated January 21, 2022, CMS explained that Petitioner abated the immediate jeopardy on October 9, 2021, but remained out of substantial compliance until December 17, 2021.  CMS Ex. 3 at 1-3.  CMS imposed a $15,975 per-day CMP for 4 days from October 6, 2021 through October 9, 2021; and a $1,515 per-day CMP for 68 days from October 10, 2021 through December 16, 2021, totaling $166,920.  CMS Ex. 3 at 1-2.  Because the noncompliance cited under Tag F600 constituted substandard quality of care, which required a partial extended survey, Petitioner was prohibited from offering or conducting a NATCEP for two years.  CMS Ex. 2 at 4. 

Petitioner filed a request for hearing on February 8, 2022.  The case was assigned to me for hearing and decision. 

II.  Admission of Exhibits

On July 12, 2022, CMS timely filed a combined motion for summary judgment and prehearing brief (CMS Br.), as well as 39 proposed exhibits (CMS Exs. 1-39). 

On January 18, 2023, Petitioner timely filed a cross-motion for summary judgment and prehearing brief (P. Br.), as well as 21 proposed exhibits (P. Exs. 1-21).  Petitioner also filed an objection to CMS Ex. 38, the written declaration of CMS’s expert witness. 

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CMS filed a joint opposition to Petitioner’s cross-motion for summary judgment and reply brief (CMS Reply), along with two supplemental exhibits (CMS Exs. 40 and 41).  

CMS also objected to two of Petitioner’s proposed witnesses, arguing that Petitioner did not provide written direct testimony for those witnesses in accordance with the Prehearing Standing Order.  CMS Objections at 1-2.  Because this case is being decided on summary judgment, CMS’s objection is moot. 

CMS Exs. 1-41 and P. Exs. 1-21 are admitted into the record.  All exhibits will be given the proper weight and consideration. 

III.  Issues

The issues to be decided are:  

1.  Whether summary judgment is appropriate;

2.  Whether the Southgate facility is subject to Medicare participation requirements;  

3.  Whether Petitioner was in substantial compliance with 42 C.F.R. §§ 483.12(a)(1) (Tag F600), 483.12(b)(1)-(3) (Tag F607), 483.70 (Tag F835), 483.25(d)(1)(2) (Tag F689), and 438.21(b)(2)(i)-(iii) (Tag F657);

4.  If Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1), 483.12(b)(1)-(3), and 483.70, did that noncompliance pose immediate jeopardy to resident health and safety; and

5.  If the facility was not in substantial compliance, is the $15,975 per-day CMP for 4 days beginning October 6, 2021 through October 9, 2021 and $1,515 per-day CMP for 68 days from October 10, 2021 through December 16, 2021 reasonable?  

IV.  Jurisdiction

I have jurisdiction to hear and decide this case.  Social Security Act (Act) §§ 1128A(c)(2), 1819(h)(2)(B)(ii) (codified at 42 U.S.C. §§ 1320a-7a(c)(2), 1395i-3(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g), 488.434(a)(2)(viii), 498.3(b)(13). 

V.  Legal Authorities

The Act sets requirements for SNFs to participate in the Medicare program and authorizes the Secretary of Health & Human Services (Secretary) to promulgate

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regulations implementing those statutory provisions.  Act § 1819 (42 U.S.C. § 1395i-3).  The Secretary’s regulations are found at 42 C.F.R. Pts. 483 and 488. 

To participate in the Medicare program, a SNF must maintain substantial compliance with program requirements.  42 U.S.C. § 1395i-3(a)(3), (b)-(d); 42 C.F.R. pt. 483, subpt. B.  When CMS selects an enforcement remedy to impose on a SNF, it determines the scope (i.e., the number of residents affected or potentially affected) and severity (i.e., the degree of harm or potential harm) for each deficiency.  See 42 C.F.R. § 488.404(a)-(b); see also 42 U.S.C. § 1395i-3(h)(2)(B)(ii)(III)(bb). 

CMS may impose a per-day CMP for the number of days a SNF is not in substantial compliance.  42 U.S.C. § 1395i‑3(h)(2)(A), (h)(2)(B)(ii)(I); 42 C.F.R. § 488.430(a).  For CMPs assessed on or after January 17, 2020, and for deficiencies that occurred on or after November 2, 2015, the CMP amounts may range as follows:  $112 to $6,695 per day for less serious noncompliance; or $6,808 to $22,320 per day for noncompliance that poses immediate jeopardy to the health and safety of residents.1   45 C.F.R. § 102.3 (2020); 85 Fed. Reg. 2869, 2880 (Jan. 17, 2020); see 42 C.F.R. § 488.438(a)(1) (providing original CMP amounts before statutory inflation adjustments). 

Depending on the nature of a facility’s noncompliance and the type of remedy imposed by CMS, a facility may also by operation of law lose its ability to offer or conduct a NATCEP for two years.  42 C.F.R. § 483.151(b)(2).  Pursuant to 42 C.F.R. § 483.151(b)(2) and (f), a state may not approve and must withdraw any prior approval of a NATCEP offered by a SNF or nursing facility that has been:  (1) subject to an extended or partial extended survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act; (2) assessed a CMP of not less than $11,160 (45 C.F.R. § 102.3 (Table) (2020)); or (3) subject to termination of its participation agreement, a denial of payment for new admissions (DPNA), or the appointment of temporary management.  Ineligibility or withdrawal of approval to conduct a NATCEP is mandatory if the conditions are satisfied; it is not a remedy that the state agency or CMS may decline to impose.  See 42 C.F.R. § 488.406. 

If CMS imposes a remedy based on a noncompliance determination, then the facility may request a hearing before an administrative law judge to determine whether there was a basis for the deficiency findings that led to the imposition of the remedy and whether the CMP imposed was reasonable.  Act §§ 1128A(c)(2) (42 C.F.R. § 1320a-7a(c)(2)), 1819(h)(2)(B)(ii) (42 U.S.C. § 1395i(h)(2)(B)(ii)); 42 C.F.R. §§ 488.408(g),

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488.434(a)(2)(viii), 498.3(b)(13).  However, the facility may not appeal CMS’s choice of remedies.  42 C.F.R. § 488.408(g)(2). 

A facility may only challenge CMS’s determination as to the scope and severity of noncompliance if a successful challenge would affect the range of the CMP that may be imposed or impact the facility’s authority to conduct a NATCEP.  42 C.F.R. § 498.3(b)(14), (d)(10)(i).  CMS’s determination as to the level of noncompliance, including the finding of immediate jeopardy, “must be upheld unless it is clearly erroneous.”  42 C.F.R. § 498.60(c)(2); Woodstock Care Ctr., DAB No. 1726 at 9, 39 (2000), aff’d 363 F.3d 583 (6th Cir. 2003).  Appellate decisions of the Departmental Appeals Board (Board) have long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except in the situation where that finding was the basis for an immediate jeopardy determination.  See, e.g., Koester Pavilion, DAB No. 1750 (2000). 

CMS must make a prima facie showing that the facility failed to comply substantially with federal participation requirements.  If this occurs, the facility must prove substantial compliance by a preponderance of the evidence to rebut CMS’s showing and to prevail.  Hillman Rehab. Ctr., DAB No. 1611 at 8 (1997), aff’d No. Civ.A. 98-3789 (GEB), 1999 WL 34813783 (D.N.J. May 13, 1999); Batavia Nursing & Convalescent Ctr., DAB No. 1904 (2004), aff’d 129 F. App’x 181 (6th Cir. 2005); Emerald Oaks, DAB No. 1800 (2001); Cross Creek Health Care Ctr., DAB No. 1665 (1998). 

VI.  Summary Judgment

Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Bartley Healthcare Nursing and Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); Ill. Knights Templar Home, DAB No. 2274 at 3-4 (2009), and cases cited therein).  The moving party may present evidence to show there is no genuine issue of material fact, and the evidence presented must either be sufficient to prevail as a matter of law or show that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. Dep’t of Health & Human Servs., 388 F.3d 168, 173 (6th Cir. 2004), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322. 

The non-moving party must present evidence that shows a genuine dispute of material fact exists to defeat summary judgment.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  When evaluating whether summary judgment is appropriate, an administrative law judge (ALJ) does not address or evaluate the weight of conflicting evidence.  Holy Cross Vill. at Notre Dame, Inc., DAB

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No. 2291 at 5 (2009).  The ALJ will draw all reasonable inferences in the light most favorable to the non-movant when examining evidence to determine whether summary judgment is appropriate.  Brightview Care Ctr., DAB No. 2132 at 2, 9 (2007); Livingston Care Ctr., 388 F.3d at 172; Guardian Health Care Ctr., DAB No. 1943 at 8 (2004); but see Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where the non-moving party’s inferences and views are not reasonable). 

VII.  Undisputed Facts

Christian Health Care Center is a skilled nursing facility and a certified Medicare provider.  CMS Br. at 1.  The facility, located in Wyckoff, New Jersey, is a complex, consisting of many units.  CMS Ex. 10.  The units relevant to this decision are the Southgate Special Care Unit (Southgate Unit) and the Heritage Manor East and West Units (Heritage Manor). 

In July and September 2021, the state agency received two complaints regarding the care of residents at Petitioner’s facility.  The first complaint alleged that Petitioner failed to provide prescribed medications to a resident after surgery, while the second complaint alleged that a resident gained excessive weight due to Petitioner’s failure to administer a diuretic.  CMS Ex. 9 at 1-3.  In response to the complaints, on October 6, 2021, the state agency conducted a survey to investigate the resident care complaints and Petitioner’s compliance with Medicare participation requirements.  CMS Ex. 1. 

Southgate Special Care Unit (Southgate)

Southgate Behavior Management Unit, Building 8.  Southgate is designated by the State of New Jersey as a Special Care Nursing Facility, which is a “NF (nursing facility) or a separate and distinct unit within a Medicaid certified conventional NF which has been approved by the Department to provide care to New Jersey Medicaid beneficiaries who require specialized health care services beyond the scope of conventional nursing facility services.”  P. Ex. 2 at 1 (emphasis supplied); CMS Ex. 11 at 17.  The purpose of the Southgate facility is “to provide care in the least restrictive, most cost-effective, and most clinically-effective manner to those patients who are not appropriately placed in the State’s psychiatric hospitals and do not qualify for acceptance to [a SNF].”  P. Br. at 5.  According to Petitioner’s policy entitled “Southgate Special Care Criteria for Admission and Continued Stay,” admission to Southgate includes individuals over the age of 18 with “a severe behavior management problem . . . including combative, aggressive and disruptive behavior.”  P. Ex. 2 at 2; CMS Ex. 11 at 18.  Exclusionary criteria for Southgate includes, but is not limited to, “[a]cute behavioral problems which require constant physical isolation, restraint to prevent injury to the resident or others and which are disruptive to the medical or nursing care of other residents, i.e. physical/sexual predator toward other residents/visitors.”  P. Ex. 2 at 3; CMS Ex. 11 at 19.  There are 44 beds in the Southgate Unit.  CMS Ex. 40.  

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Resident 105
Resident 105 (R105), a 69-year-old male, was admitted to Southgate on February 7, 2020.  CMS Ex. 5 at 1; P. Ex. 1 at 2.  R105 had several diagnoses including:  paranoid schizophrenia, dementia with behavior disturbances, wandering, restlessness, agitation, and anxiety.  Id.  

R105’s care plan, dated February 24, 2020, noted that he showed aggression and agitation; was physically and verbally abusive; resisted care; was prone to wandering; took food from other residents’ trays, and cursed at and threatened staff and peers.  CMS Ex. 5 at 6.  He showed aggressive behaviors towards other residents, such as attempting to kick, hit, push, scratch, grab, and sexually abuse other residents, and using racial slurs.  CMS Ex. 1 at 12; CMS Ex. 5 at 1, 5-6.  

A member of the state agency’s survey team was assigned to the Southgate Unit.  Upon arriving, the surveyor observed R105 wandering the hallway and threatening and acting aggressively towards staff and residents.  CMS Ex. 32 at 8 ¶ 32.  The surveyor noted that staff were not monitoring R105 and decided to investigate further.  Id.  Over multiple days, the surveyor observed R105 frequently using derogatory language towards residents and staff, in addition to grabbing staff as they walked by.  Id. at 8 ¶¶ 34, 36.  R105 approached the surveyor with a closed fist and threatened to punch him.  Id. at 8 ¶ 35; CMS Ex. 1 at 14.  

Nursing progress notes show that R105 consistently displayed aggressive behaviors towards staff members and residents and was involved in multiple altercations with his peers in May and June of 2021.  On May 1, R105 verbally abused and threatened to hit  anyone who came into the unit.  CMS Ex. 7 at 3.  On May 7, Petitioner instituted 1:1 monitoring after R105 ate leftover food from other residents’ trays, in addition to pushing and pulling, hitting, and cursing at others.  P. Ex. 4 at 6; CMS Ex. 7 at 6.  On May 8, R105 used racial slurs and cursed at others.  CMS Ex. 7 at 6.  On May 9, R105 was noted to be intrusive on staff, peers’, and visitors’ personal space, continually used racial slurs, and cursed at and threatened others unprovoked.  Id. at 7.  On May 13, R105 was cursing and yelling, and was combative when redirected, ultimately requiring 1:1 intervention.  Id. at 9.  On May 14, R105 punched a nurse in the face unprovoked, requiring security and medication intervention.  Id.  That same day, R105 was noted as having poor impulse control and was unable to follow redirection when displaying behavioral disturbances and being verbally inappropriate to staff and peers.  Id.  On May 19, R105 used a racial slur and attempted to start a physical altercation with another resident, which required 1:1 monitoring.  Id. at 11.  R105’s behavior continued and on May 21, Petitioner again implemented 1:1 monitoring and deemed non-drug interventions ineffective.  Id. at 15.  On May 23, 26, 27, 28, and June 1, R105 attempted to engage in multiple physical altercations with staff and residents and used racial and insulting slurs to disrupt the Southgate Unit.  Id. at 16, 19, 20, 22.  On June 2, R105 punched Resident 197 (R197) in

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the mouth, which resulted in R197 visiting the emergency room and getting stitches.  As a result of that incident, R105 was sent to a psychiatric hospital where he remained until he was readmitted to Southgate on August 2, 2021.  CMS Ex. 1 at 14-15; CMS Ex. 5 at 11; CMS Ex. 7 at 23, 27; P. Ex. 4 at 44. 

Upon his August 2, 2021 readmission to Southgate, R105 continued to display aggressive behaviors towards staff and residents.  See CMS Ex. 7 at 27-88.  The next day, on August 3, R105 threatened and used abusive language towards staff, punched a staff member, scratched a nurse on the arm, and tried to fight his peers.  Id. at 33.  On August 10, a nurse intervened when she observed R105 arguing with another resident.  R105 punched the nurse in the chest and said, “get away from me you white trash motherfucker, I will kill you.”  Id. at 36.  On August 13, R105 slapped Resident 198 on her buttocks then proceeded to push her to the ground when she turned to confront him.  Id. at 42.  Between R105’s August 2 readmission to Southgate and the August 13 incident, Petitioner did not update R105’s care plan or implement additional interventions.  CMS Ex. 1 at 15; CMS Ex. 5 at 7-9; CMS Ex. 7 at 44-45. 

On August 14, R105 invaded staff and residents’ personal space, antagonized residents with swearing and racial slurs, and drew his hand back in a punching stance when staff attempted to redirect him.  CMS Ex. 7 at 48. 

The Interdisciplinary Committee (IDC Team) at Petitioner’s facility reviewed R105’s care plan on August 18 and did not recommend any new interventions to address R105’s behavior.  Id. at 44, 45, 89.  The next day, on August 19, R105 made inappropriate comments in other residents’ faces; it was noted that while the medication decreased the frequency and intensity of R105’s behavioral issues, it did not eliminate or prevent the issues.  Id. at 46. 

On September 5 and 6, R105 pulled the hair of other residents in the unit and threatened to kill a nurse.  CMS Ex. 7 at 55-56.  On September 7, R105 continuously provoked, threatened, and antagonized other residents, requiring security to implement 1:1 monitoring.  Id. at 56.  Petitioner conducted a psychiatric follow-up of R105 on September 14, during which R105’s behavior was noted as having escalated over the past few weeks.  Id. at 61-62.  The next day, on September 15, R105 threatened to kill another staff member.  Id. at 63.  R105 continued to display aggressive behavior in the following days and weeks.  CMS Ex. 1 at 17; CMS Ex. 7 at 63-88. 

On October 7, there were multiple incidents of R105 charging at other staff and residents, using racial slurs, aggressively grabbing a staff member’s arm, punching a staff member, and pulling Resident 234’s hair.  CMS Ex. 7 at 84.  On October 9, R105 was again cursing and using racial slurs towards peers and staff and attempted to hit staff when redirected.  Id.  On October 10, while under 1:1 monitoring, R105 pushed his monitor, put his hands in her face, knocked her glasses off, and was verbally abusive.  Id. at 88. 

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Consistent with the surveyor’s observations, R105 nearly constantly threatened, cursed at, or hit staff members or other residents who walked past him from May through October of 2021.  Compare CMS Ex. 32 at 8 ¶ 34 with CMS Ex. 7 at 3, 19, 22, 34, 35, 46, 52, 53, 55, 56, 58, 61, 75, 77, 78.  Redirection, monitoring, and medication intervention were ineffective to stop R105’s verbal or physical abuse.  Id.  Due to escalating behavior, the facility sought permission to send R105 to a psychiatric hospital after the incident on October 10.  CMS Ex. 7 at 87.  R105’s family denied the request and he was instead sent to the emergency room for evaluation.  Id.  

Noncompliance Determination.  The state agency determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) because, based on the surveyor’s observations, it failed to provide a safe environment “to prevent resident-to-resident abuse” for Residents 197, 198, and 234, and because Petitioner’s failure put all Southgate Unit residents at risk of abuse from R105.  CMS Ex. 1 at 10. 

Heritage Manor Units

Resident 152 
Resident 152 (R152), a 97-year-old woman, was a resident at one of Petitioner’s Heritage Manor Units.  R152 had diagnoses of Alzheimer’s disease, cognitive impairment with memory loss, impaired decision-making skills, and confusion.  CMS Ex. 15 at 123; CMS Ex. 16 at 7.  R152’s care plan identified that she had a history of falls prior to admission and “poor safety awareness.”  P. Ex. 6 at 14; CMS Ex. 17 at 1-2.  R152’s care plan included several fall prevention measures including:  observing for unsafe behavior (entered September 2018); physical and occupational therapy referrals for changes in functional mobility (September 2018); non-slip footwear (October 2018); encouraging the use of hip guards daily (April 2019); a pad sensor alarm to her bed and chair (May 2020); floor mats beside the bed (July 2021); and a pressure relieving scoop mattress (November 2021).  CMS Ex. 17 at 1. 

R152 suffered multiple unwitnessed falls while residing at Heritage House on June 9 and 29, July 15, and September 12, 2021.  CMS Ex. 15 at 4, 8, 12, 19.  The June 9, 2021 fall resulted in an abrasion on the back of R152’s head.  CMS Ex. 15 at 4-5.  As a result of the June 9 fall, the IDC Team reviewed R152’s interventions and determined that the footwear and hip guards were appropriate, and neurological checks were conducted.  P. Ex. 6 at 15.  R152 was also educated on how to call for help.  CMS Ex. 15 at 7.  A chair alarm was listed as a new intervention.  See P. Ex. 6 at 15; CMS Ex. 15 at 75.  

The June 29, 2021 fall occurred when R152 self-transferred from the bed to her wheelchair.  CMS Ex. 15 at 8-9, 80.  The wheelchair brakes were off, causing the wheelchair to roll when R152 tried to self-transfer.  Id.  Staff found R152 on the floor between the door and the bed.  As a result of the fall, R152 had a bruise on her left hand

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and experienced neck and back pain.  Id.  R152 was again educated about calling for assistance and was monitored by staff.  Id. at 81. 

The July 15, 2021 fall occurred when R152 spilled milk and ambulated to the bathroom without calling for help.  CMS Ex. 15 at 12, 92-93.  The tab alarm alerted staff, who found the resident on the floor sitting with her back against the wall with her legs out in front of her.  Id. at 12, 92.  Some contributing factors were listed as:  inability to understand; inadequate/improper use of assistive device; failure to obtain needed assistance; and trying to be independent.  Id. at 12, 93. 

The September 12, 2021 fall occurred when R152 removed her tab alarm, exited her bed, and ambulated towards the doorway without using her walker.  CMS Ex. 15 at 19, 131.  Staff heard a loud bang and a scream and found R152 lying on the floor in the doorway of her bedroom.  Id. at 19, 35, 131.  R152 suffered a left humerus fracture, impacted intra-articular left distal radius fracture, and left hip subcapital femoral neck fracture, which resulted in her transfer to the emergency room.  Id. at 19, 35, 133.  She was hospitalized from September 14-20, 2021.  Id. at 143.  An action plan was implemented, which included continuing to use a low bed, floor mats beside the bed, considering the use of a pad sensor alarm while in bed, and providing frequent cueing to remind R152 to use her walker when ambulating.  Id. at 24.  Petitioner identified the root cause of the fall as R152 ambulating without her walker and known gait instability.  Id. at 23. 

Resident 161 
Resident 161 (R161), an 89-year-old woman, was admitted to one of Petitioner’s Heritage Manor Units on May 18, 2021.  CMS Ex. 18 at 1.  Upon admission, R161 had a fractured right femur, Parkinson’s disease, muscle weakness, age-related osteoporosis, and a history of falling.  CMS Ex. 1 at 115; CMS Ex. 18 at 1.  Petitioner conducted a fall assessment and determined that R161 was at a “moderate risk” level for falling.  CMS Ex. 18 at 30. 

R161 suffered three unwitnessed falls in June, July, and August of 2021.  CMS Ex. 18 at 19-29.  On June 1, 2021, R161 was found on the floor at her bedside and stated that she fell while on her way back from the bathroom.  Id. at 19.  No injuries were recorded.  Contributing factors for the fall were noted as disregarding instructions, trying to be independent, inadequate/improper use of an assistive device, and lost/impaired balance.  Id.  Petitioner spoke to R161’s daughter on proper footwear and confirmed staff would continue to use a tab alarm.  Id. at 22.  

On July 6, 2021, R161 was found lying on the floor in front of her closet.  CMS Ex. 18 at 23.  R161 told staff she was standing still and “just fell down.”  Id.  Staff noticed a scrape and bruising on her left elbow and a scrape on her left knee, and R161 reported being unsure whether she had hit her head.  Id.  Contributing factors for the fall were noted as failing to obtain necessary assistance, lost/impaired balance, and noncompliance with

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instructions.  Id.  Staff conducted neurological checks, notified R161’s daughter, and provided R161 with education on safety.  Id. 

On August 11, 2021, R161 was found lying on her back, beside her bed, after staff heard her screaming.  CMS Ex. 18 at 27.  The fall occurred when R161 tried to transfer to her wheelchair, but the wheelchair moved, and she fell to the floor.  Id.  R161 suffered bruising on her upper back, and multiple fractured ribs.  Id. at 27, 29.  Contributing factors for the fall were noted as current diagnosis or preexisting medical condition, toileting required, and trying to be independent.  Id. at 27.  R161 was re-educated on safety, using the call bell, and monitoring her footwear.  Id. at 29.  Re-education efforts were noted to be ineffective.  P. Ex. 7 at 2. 

Petitioner continued using the hip protectors, scoop mattress, low mattress, sensor pad alarm for R161’s bed and chair, and a tab alarm for R161’s bed and chair, and continued to ensure the call bell was within R161’s reach.  CMS Ex. 18 at 32, 33, 35, 39.  The IDC Team met on September 14, 2021, and determined that R161’s care plan and interventions remained appropriate.  Id. at 40; P. Ex. 7 at 4. 

Resident 213.  
Resident 213 (R213), an 88-year-old man, was readmitted to Petitioner’s facility on August 17, 2021.  CMS Ex. 19 at 1.  R213 had several diagnoses, including dementia, history of traumatic fracture, abnormalities of gait and mobility, limitation on activities due to disability, and muscle weakness.  Id.  R213 was admitted to Petitioner’s facility with an indwelling urinary catheter.  Id. at 3.  His care plan indicated that he had impaired mobility, was a high risk for falls, and required assistance with mobility, hygiene tasks, and transfer tasks.  Id. at 4.  Some of the interventions in the care plan include:  a tab alarm to bed and wheelchair at all times; encouraging appropriate assistive devices (i.e., cane) and proper fitting, non-skid shoes; maintaining the bed in a low position; observing for unsafe behavior; reminding R213 to call for assistance when needing to transfer; and assisting with toileting and meeting daily needs.  Id.  The interventions were all effective August 31, 2021, except for assisting with toileting and meeting daily needs, which was effective September 5, 2021.  Id. 

On August 24, 2021, R213 was observed ambulating in the hallway with an unsteady gate and increased confusion.  R213 was also observed removing the leg strap for his catheter collection bag, causing the bag to drag on the floor.  Staff replaced R213’s collection bag and reminded him to use a wheelchair or a walker.  CMS Ex. 19 at 90.  

A few days later on August 29, 2021, R213 was again observed with increased confusion ambulating in the hallway with an unsteady gait, while dragging his catheter collection bag on the floor.  CMS Ex. 19 at 91-92.  He was offered the use of a wheelchair and walker, which he declined.  Id. at 92. Staff replaced R213’s collection bag and redirected him.  Id. 

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R213 suffered two falls, one witnessed and one unwitnessed.  The unwitnessed fall occurred on September 10, 2021, when staff found R213 on the floor after hearing a “thud” in his room.  CMS Ex. 19 at 63.  R213 stated that he “stepped on a paper and [] slid.”  Id.  R213 complained of pain to his ribcage and elbow directly after the fall and could not move his arm.  Id. at 63-64.  As a result, staff ordered an x-ray.  Id. at 64.  A contributing factor to the fall was noted as “resident non[-]compliant, he wants to walk around even inside his room.”  Id. at 63.  There is no indication as to whether fall prevention devices were in use at the time of the fall.  Id.  On September 16, 2021, the IDC Team conducted a fall review.  The team noted that neurological checks were conducted and initiated the intervention of monitoring to ensure R213’s room was clutter free.  CMS Ex. 19 at 110; P. Ex. 5 at 14.  R213’s care plan was not updated.  See CMS Ex. 19 at 2-22; P. Ex. 5 at 12. 

The second fall occurred on September 18, 2021, when staff saw R213 fall in the hallway next to his wheelchair.  CMS Ex. 19 at 112.  R213 refused to move his right arm and elbow due to pain after the fall.  Id.  A contributing factor to the fall was noted as “resident non-compliant, very confuse[d].”  Id. at 60.  There is no indication as to whether fall prevention devices were in use at the time of the fall.  Id.  On September 19, 2021, a nurse entered a follow-up progress note which initiated a new intervention of monitoring R213 throughout the shift.  Id. at 114; P. Ex. 5 at 15.  A box was also checked “no” for whether R213 needed continued monitoring.  P. Ex. 5 at 15.  On September 23, 2021, the IDC Team conducted a fall review and recommended that a psychiatric follow-up be conducted as a new intervention.  CMS Ex. 19 at 71; P. Ex. 5 at 16.  On September 30, 2021, the IDC Team concluded that all of R213’s care plans remained appropriate.  CMS Ex. 19 at 119-120; P. Ex. 5 at 17. 

On October 7 and 8, 2021, a surveyor noted that there was no tab alarm on R213’s bed or wheelchair, and that his bed was not in the lowered position.  CMS Ex. 36 at 10 ¶¶ 41-42; CMS Ex. 1 at 120.  The surveyor also noted that R213 was unable to hear when she attempted to interview him, as he was not wearing his hearing aids.  CMS Ex. 36 at 10 ¶ 43; CMS Ex. 1 at 49. 

Noncompliance determination.  The state agency determined that Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1) and (2), because, based on the surveyor’s observations, it failed to provide adequate supervision and “ensure fall assessments were completed and interventions were put into place to decrease the likelihood of falls” for Residents 152, 161, and 213.  CMS Ex. 1 at 107. 

VIII.  Analysis and Conclusions of Law

1.  Petitioner’s “Southgate” Unit is subject to Medicare and Medicaid participation requirements.  

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Much of Petitioner’s argument centers around Southgate’s designation as a Special Care Nursing Facility (SCNF) by the state of New Jersey.  P. Br. at 14-23, 28-29.  New Jersey regulations define a SCNF as a “NF or separate and distinct unit within a Medicaid certified conventional NF which has been approved by the Department of Health and Senior Services to provide care to New Jersey Medicaid beneficiaries who require intensive nursing facility services beyond the scope of a conventional nursing facility. . . .”  N.J.A.C. § 8:85-2.21.  Petitioner argues, without authority, that due to Southgate’s designation as a SCNF, the unit is not subject to 42 C.F.R. Part 483 requirements and the surveyors did not have the authority to conduct compliance surveys.  P. Br. at 2, 21-23, 28-29. 

However, Petitioner’s entire facility, Christian Health Care, operates as a Long-Term Care Facility (LTCF) under one license with the New Jersey Department of Health.  CMS Ex. 40.  The facility is licensed for 298 beds, including 44 behavioral management beds.  Id.  The Southgate Unit is not a separately licensed facility.  Petitioner’s witness, Deborah Gottlieb, through her written declaration, states, “Southgate beds are not Medicare certified, but rather are ‘Medicaid only’ beds.”  P. Ex. 21 at 3 ¶ 10.  However, Ms. Gottlieb does not state any authority for this assertion.  It is undisputed that New Jersey has set aside special funding for these special care units, but there is no evidence that this exempts the special care units from LTCF requirements.  Additionally, the Medicare/Medicaid program does not actually “certify” beds.  State Operations Manual (SOM) Ch. 2, § 2762B.2  The beds designated for the Southgate Unit are a part of the LTCF and thus subject to the requirements under 42 C.F.R. pt. 483.3  Additionally, even if the Southgate Unit qualifies as a distinct part4  of the Christian Health Care facilities, it is still subject to the LTCF participation requirements. 

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Both parties use the SOM to support their positions.  Petitioner argues that the SOM “requires facilities to focus on each resident’s comprehensive and individualized needs” and that “the survey should likewise take the need for and provision of specialized services into account.”  P. Br. at 22.  However, Petitioner fails to show the connection between providing specialized and individualized care to residents and being unable to meet CMS’s applied participation standards.  It is undisputed that the Southgate Unit is defined as a nursing facility under the New Jersey code.  N.J.A.C. §§ 8:85-1.2, 8:85-2.21.  The SOM specifically states that “skilled nursing facilities and nursing facilities must be in compliance with the requirements of 42 [C.F.R.] Part 483, Subpart B to receive payment under Medicare or Medicaid.”  SOM Ch. 7 § 7200.  Petitioner has not provided evidence to show that Southgate is not subject to the standards that a nursing facility would be subject to under the regulations.  Petitioner provides an email that shows it confirmed with the New Jersey Department of Health that it has 44 Medicaid-only certified beds.  P. Ex. 8.  However, this evidence does not prove anything other than that confirmation.  In addition, 42 C.F.R. § 483.1(a)(3) provides that nursing facilities participating in Medicaid must meet certain specific requirements.  N.J.A.C. § 8:85-1.3(a)(2) requires NFs to be certified to meet Federal requirements for participation in Medicare and Medicaid.  A SCNF is a NF or a unit within a Medicaid-certified NF.  N.J.A.C. § 8:85-2.21.  Therefore, even if Petitioner’s assertions are correct, and the beds in the Southgate Unit are Medicaid-only beds, they are still subject to the requirements and standards outlined in part 483. 

Petitioner states that “Medicare Conditions of Participation do not expressly address the category ‘SCNF,’ which is a Medicaid-specific category of service in New Jersey” and claims that prior surveyors have evaluated Southgate in a different context regarding the behavior management needs of the residents there.  P. Br. at 21-22.  However, Petitioner has not provided any evidence showing prior instances where surveyors determined that Southgate should be evaluated at a different standard based on its status as a SCNF.  

While Petitioner’s facility is one of a limited number of SCNF facilities in the state of New Jersey, there is no evidence to support the argument that Southgate is not subject to the Medicare participation requirements.  Without evidence or cited regulations that show that an SCNF is not subject to the participation requirements of a SNF, I cannot reasonably infer that it is exempt from being evaluated for compliance with participation requirements with the remainder of the facilities under the ownership of Christian Health Care. 

2. Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1) (Tag F600) because it failed to keep its residents free from abuse. 

Under 42 C.F.R. § 483.12(a) (Tag F600), residents have the right to be free from abuse, neglect, misappropriation of resident property, and exploitation.  Residents in the

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Southgate Unit are included in this requirement.  “Abuse” is defined as the “willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish,” including the deliberate deprivation by an individual or caretaker of goods or services necessary to attain or maintain a resident’s physical, mental, and psychosocial well-being, which results in physical harm, pain or mental anguish.  42 C.F.R. §§ 483.5, 488.301.  “Neglect” is the “failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.”  42 C.F.R. §§ 483.5, 488.301. 

Though 42 C.F.R. § 483.12(a)(1) specifies that the facility must not use physical abuse against residents, residents also have the right to be free from abuse by individuals who are not members of the facility staff when the facility could have foreseen the abuse.  See The Bridge at Rockwood, DAB No. 2954 at 23-24 (2019) (internal citations omitted); Kindred Transitional Care and Rehab – Greenfield, DAB No. 2792 at 11 (2017) (“determining whether a facility failed to protect a resident’s right to be free from abuse when another resident behaved harmfully depends on whether the facility staff had a basis to be aware that such behavior might occur and yet left the resident vulnerable to it”); Woodstock Care Center, DAB No. 1726 at 27 (2000) (the facility’s “own assessments of the residents involved were replete with documentation warning of the propensities and manifestations that could predict eloping or aggression, and with documentation of the dangers such behaviors would present to residents with little or no ability to protect themselves. . . .”). 

It is undisputed that after a year of relative stability, R105 “began showing signs of increased aggression, despite the continuation of interventions that had worked in the past.”  P. Br. at 8.  Petitioner argues that the displays of increased agitation and aggression does not mean that a resident will become violent, as many Southgate residents have periods of agitation and aggression.  P. Br. at 8.  However, R105 did become violent.  The evidence shows that R105 displayed physically aggressive and verbally obscene behavior on numerous occasions, almost daily in some cases, and was a threat to both staff and other residents.  Petitioner was aware of R105’s tendencies, but failed to protect other Southgate residents from R105’s behavior, which resulted in actual harm to multiple residents.  Petitioner argues that R105’s progress notes and records show that Southgate staff employed a “comprehensive and evolving” strategy to address R105’s behaviors.  P. Br. at 24.  However, Petitioner fails to cite to any of these strategies in the record.  Petitioner repeatedly refers to an expert report from Dr. Howard Gilman (which also fails to cite to anything in the record), but not any evidence in the record.  Petitioner argues that the facility implemented “a variety of situation-appropriate interventions, from redirection to medication adjustments, to protect R105 and other residents from harm.”  P. Br. at 25.  However, a review of the record shows that Petitioner’s efforts to redirect R105 were reactions to abusive incidents and frequently

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ineffective to prevent future instances of abuse.  CMS Ex. 7.  Specifically, 1:1 interventions and non-drug interventions were deemed ineffective.  Id. at 15. 

CMS argues that Petitioner failed to protect other residents from R105 because there was a reasonably foreseeable risk of abuse and Petitioner failed to take reasonable steps to prevent the abuse from occurring.  CMS Br. at 17, 18.  Once R105 returned to Southgate after being discharged from a psychiatric hospital, staff knew that R105’s behaviors continued to put others at significant risk for physical injury, significantly intruded on others’ privacy or activities, and significantly disrupted others’ care or living environment.  CMS Ex. 6 at 18, 19 (R105’s August 9, 2021 readmission MDS reports his behavior status as the same as his prior assessment).  R105’s aggressive behaviors such as cursing at, grabbing, verbally abusing, scratching, punching and getting combative with, and attempting to fight other residents and staff increased.  CMS Ex. 7; compare CMS Ex. 6 at 18, 19 (R105’s August 9 MDS reports his behavioral symptoms as occurring less than daily) with CMS Ex. 6 at 70 (R105’s October 10, 2021 MDS reports R105’s behavioral symptoms had increased to occurring daily).  Despite this behavior, the facility failed to update R105’s care plan or to implement additional interventions.  CMS Ex. 7 at 44-45.  Petitioner did not have a plan in place to prevent new incidents of violence by R105 or to minimize the impact of R105’s behavior on other residents. 

Again, without authority, Petitioner argues that R105’s actions cannot be characterized as “abuse” because abuse would require that R105 acted willfully.  P. Br. at 39.  Petitioner also argues that R105’s medical conditions predispose him to aggression and agitation, so he lacks the cognitive ability to form the intent to make the decision to act harmfully towards other residents.  P. Br. at 39.  While Petitioner is technically correct that the definition of “abuse” requires the individual to have acted deliberately, cognitive defects or dementia does not mean that a person lacks the ability to act willfully.  The Board has ruled that even a resident with cognitive defects is capable of willfully directing aggressive actions towards another person instead of by accident.  Bridge at Rockwood, DAB No. 2954 at 27 (2019).  A facility’s “requirement to keep residents free from abuse extends to protecting them from attack by ‘a resident with a known propensity to engage in potentially injurious behaviors such as hitting or kicking others, even where the resident has cognitive deficits.’”  Id. at 28 (internal citations omitted). 

Petitioner also asserts that there is a question of material fact because it and CMS have submitted conflicting expert reports regarding whether the measures that Petitioner implemented to address R105’s behaviors were reasonable, and that this matter should at least go to hearing rather than be decided on summary judgment.  P. Br. at 25 (referring to CMS Ex. 38 and P. Ex. 21).  While Petitioner correctly notes that the experts provide conflicting legal conclusions, the conflicting expert testimony does not create an issue of material fact.  The experts disagree on whether the facility was in compliance based on the interventions taken in regard to R105’s behavior.  Petitioner’s expert, Dr. Gilman, discusses all the interventions that were provided to R105 and concludes that Petitioner’s

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facility was not out of compliance, while CMS’s expert, Dr. Jeff Victoroff, concludes that Petitioner’s facility was out of compliance.  I will draw conclusions and make determinations based on the undisputed facts within the record, and I am not required to accept the legal conclusions of either expert. 

A facility must use “all reasonable efforts” to protect residents from the possible assault of another resident whose aggressive behavior has become known.  Martha & Mary Lutheran Servs., DAB No. 2147 at 5-12 (2008); Countryside Rehab. & Health Ctr., DAB No. 2853 at 16-17 (2018) (when trying to avoid resident-on-resident incidents, facility staff must make all reasonable efforts to protect residents from foreseeable adverse events).  Regarding foreseeability, the Board has held that when a resident who, on more than one occasion, has displayed aggression or assaulted another resident, a facility does, or should, know that the resident might inflict injury on another resident.  W. Care Mgmt. Corp., DAB No. 1921 at 9 (2004) ( Petitioner “had a duty to take reasonable steps to mitigate the risk of harm to other residents,” and “did not protect and promote residents’ rights to be free from abuse” because Petitioner should have known of the risk of harm because of the resident’s repeated aggressive behavior).  

The evidence shows that despite R105 being admitted to a psychiatric hospital after assaulting another resident, Petitioner did not implement new interventions between the time of his August 2 readmittance and the August 13 incident, despite R105’s continued behavior and the possibility of harm to another resident.  By R105’s documented, repeated behaviors, Petitioner should have foreseen that it was possible, even likely, that another resident would be harmed.  This did in fact occur on October 7, when R105 pulled Resident 234’s hair twice.  R105 physically assaulted three residents and threatened many others.  The undisputed facts establish that Petitioner failed to keep its residents free from these abuses, even though it was foreseeable that they could occur, and thus Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(a)(1). 

3.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607) because it failed to develop and implement written policies that effectively prohibited and prevented resident-to-resident abuse.  

Under 42 C.F.R. § 483.12(b) (Tag F607), facilities are required to develop and implement written policies and procedures that:  “(1) prohibit and prevent abuse, neglect, and exploitation of residents . . . , (2) establish policies and procedures to investigate any such allegations, and (3) include training as required at paragraph § 483.955 .”  A facility may

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fail to comply substantially with section 483.12(b)(1) if it fails to develop policies or procedures adequate to prevent neglect, or if it fails to implement such policies.  See, e.g., Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 6 (2016) (quoting Glenoaks Nursing Ctr., DAB No. 2522 at 14 (2013)). 

According to Petitioner’s policy on Abuse, Neglect, or Exploitation, “[w]hen abuse, neglect or exploitation is suspected or discovered, immediate corrective action will be taken.”  CMS Ex. 11 at 1.  Staff are required to immediately notify their supervisor or the Nurse Manager when they identify, in relevant part, actual or suspected abuse or neglect, or an injury of unknown origin.  Id. at 4.  Upon receipt of abuse allegations, supervisory staff are required to review them with Risk Management and the director of their department or the Administrator, and then investigate all reports within the previous 24 hours to determine if the event warrants further action.  Id. at 5.  Petitioner’s Interdisciplinary Care Planning and Assessment policy lays out the framework for care plans for residents, and states that “[c]are plans are revised as changes in the resident’s condition dictates,” and reviews are made quarterly at a minimum.  Id. at 12.  Additionally, the policy specifies the IDC Team will conduct resident assessments and reviews within two weeks of the resident’s admission or readmission to the facility as well as when there has been a significant change in the resident’s condition, quarterly, and once every 12 months.  Id. 

The evidence shows that Petitioner failed to comply with its own policies when the IDC Team did not conduct a resident assessment within two weeks of R105’s August 2, 2021 readmission to the facility.  Petitioner argues that this requirement was satisfied by R105’s January 21, 2020 Pre-Admission Screening and Resident Review.  P. Br. at 31; P. Ex. 10.  Petitioner also cites to a “comprehensive nursing assessment” dated January 6, 2021 (P. Ex. 11), but otherwise does not show that R105 was assessed by the IDC Team within the two weeks of his readmission on August 2, 2021, as required by its policy.  P. Br. at 35; P. Ex. 4 at 49-50, 91.  This is particularly disturbing since R105 was admitted to a psychiatric hospital after a violent episode and upon readmission, the IDC Team did not conduct an assessment until August 13, 2021, when he slapped another resident and pushed her to the ground.  See CMS Ex. 7 at 89 (August 18, 2021 IDC Team note indicates a meeting for a new admission); P. Ex. 4 at 91 (same); CMS Ex. 7 at 43-44 (August 18, 2021 progress note summarizing the IDC Team’s conclusions).  Additionally, while the abusive behavior is identified and documented, Petitioner failed to document whether staff reported and supervisory staff investigated R105’s abusive behavior.  See generally, CMS Ex. 7; P. Ex. 4.  Petitioner also often failed to take corrective action against R105 after documented incidents, thus subjecting other residents to his abusive behaviors.  The undisputed facts establish that Petitioner did not implement its own policies and thus was not in substantial compliance with 42 C.F.R. § 483.12(b)(1)-(3). 

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4.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.70 (Tag F835) because it failed to protect other residents from resident-to-resident abuse. 

Under 42 C.F.R. § 483.70 (Tag F835), a facility “must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”  42 C.F.R. § 483.70.  Further, facilities are required to be in compliance with all applicable federal, state, and local laws, regulations, and codes as well as with “professional standards and principles that apply to professionals providing services in such a facility.”  42 C.F.R. § 483.70(b). 

Petitioner again argues that the wrong standard was applied for this tag, as “Southgate developed and implements effective interventions to eliminate [R]105’s anxiety and aggression.”  P. Br. at 27.  However, I have established that Southgate is subject to the same Medicare participation requirements as the rest of the facility.  I also concluded that Petitioner was not in substantial compliance with 42 C.F.R. § 483.12, as Petitioner failed to protect several residents from resident-to-resident abuse.  I reasonably conclude that “where a facility has been shown to be so out of compliance with program requirements that its residents have been placed in immediate jeopardy, the facility was not administered in a manner that used its resources effectively to attain the highest practicable physical, mental, and psychosocial well-being of each resident.”  Asbury Center at Johnson City, DAB No. 1815 at 11 (2002).  The undisputed evidence stablishes that Petitioner was not in substantial compliance with 42 C.F.R. § 483.70. 

5.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.25(d)(1)(2) (Tag F689) because it failed to ensure that several residents received adequate supervision and assistance devices to prevent falls.  

Under 42 C.F.R. § 483.25(d) (Tag F689), facilities must ensure that residents receive treatment and care in accordance with professional standards of practice, a comprehensive person-centered care plan, and the resident’s choices.  42 C.F.R. § 483.25.  Under subsection 483.25(d) a facility must also ensure that: 

(1) The resident environment remains as free of accident hazards as is possible; and 
(2) Each resident receives adequate supervision and assistance devices to prevent accidents. 

Subsection 483.25(d)(1) requires that a facility address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or, where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Maine Veterans’ Home - Scarborough, DAB No. 1975

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at 10 (2005) (explaining the inherent standard of care in section 483.25(h)(1)).6  The provisions of section 483.25(d)(1) and (2) “come into play when there are conditions in a facility that pose a known or foreseeable risk of accidental harm.”  Meridian Nursing Ctr., DAB No. 2265 at 10 (2009), aff’d sub. nom. Fal‑Meridian, Inc. v. U.S. Dep’t of Health & Human Servs., 604 F.3d 445 (7th Cir. 2010).  

Further, subsection 483.25(d)(2) requires that a facility 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.”  Briarwood Nursing Ctr., DAB No. 2115 at 11 (2007) (citing Woodstock Care Ctr. v. Thompson, 363 F.3d 583, 590 (6th Cir. 2003) (facility must take “all reasonable precautions against residents’ accidents”), aff’g Woodstock Care Ctr., DAB No. 1726 (2000)).  Facilities are given “the flexibility to choose the methods” they use to provide supervision or assistive devices to prevent accidents, so long as the chosen methods “constitute an ‘adequate’ level of supervision” for a particular resident’s needs.  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). 

The mere occurrence of an accident does not, by itself, prove that a facility provided inadequate supervision.  Lake Park Nursing & Rehab. Ctr., DAB No. 2035 (2006) (2006 WL 2382924 at *5).  However, when “an accident does occur, the circumstances surrounding an accident (or apparent accident) may support an inference that the facility’s supervision of a resident was inadequate.”  Id. (citing St. Catherine’s Care Ctr. of Findlay, Inc., DAB No. 1964 (2005)). 

CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019) (quoting The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019) (citing Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013) (“the Board has long held that a facility’s own policy may be sufficient evidence . . . of what the facility has determined is needed to meet the quality-of-care requirements in section 483.25.”)). 

A facility violates section 483.25(d) “if it fails, ‘without justifiable reason,’ to implement accident precautions that its own staff has determined to be necessary to mitigate foreseeable accident risks.”  Good Shepherd Home for the Aged, Inc., d/b/a The Good

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Shepherd Home, DAB No. 2858 at 14 (2018) (quoting NHC Healthcare Athens, DAB No. 2258 at 13 (2009)); Del Rosa Villa, DAB No. 2458 at 9 (2012), aff’d Del Rosa Villa v. Sebelius, 546 F. App’x. 666 (9th Cir. 2013); Burton Healthcare Ctr., DAB No. 2051 at 9 (2006) (“adequate supervision and assistance devices for a particular resident depends on the resident’s ability to protect himself from harm.”). 

Petitioner’s Resident Safety Program-Fall Prevention Policy (Fall Policy). 

Petitioner’s fall policy states that “[a]ll residents who are at risk for falls will be identified through a comprehensive assessment process.  This risk will be addressed in the resident[’]s individualized Treatment Plan and evaluated through the IDC process.”  CMS Ex. 11 at 14.  The policy states that a Morse Scale Falls Risk Assessment (Morse Assessment) will be completed upon admission and readmission, significant change assessment, quarterly assessment, and after each fall event.  Id. at 15.  Additionally, the policy states that risk for falls and/or injury is identified and addressed in the resident’s treatment plan, and if a fall does occur, a Fall Event Progress Note will be completed during the shift in which the fall occurs, the first follow-up note will be completed by the next shift, and a second follow-up note will be completed by the subsequent shift.  Id.  Falls will also be reviewed weekly by the IDC Team, interventions will be adjusted, and care plans will be updated as necessary.  Id. 

Resident 152.  It is undisputed that R152 fell four times on June 9 and 29, July 15, and September 12, 2021.  Petitioner argues that several factors contributed to R152’s falls, including diagnoses of dementia and a urinary tract infection, which can cause confusion in the elderly.  P. Br. at 48.  Given these factors, Petitioner believes that it would be incorrect to assume the cause of R152’s falls was an absence of interventions.  Id.  However, given R152’s diagnoses and history, the falls were foreseeable and avoidable.  It was incumbent upon Petitioner to have measures in place to prevent falls, not merely to respond to the falls, particularly when the existing measures proved to be ineffective.  Here, despite multiple falls, a resident diagnosed with dementia, was repeatedly educated on calling for assistance and it was repeatedly determined that the “universal fall” precautions were adequate.  P. Br. at 49.  The record does not show that Petitioner took any additional measures to prevent R152 from falling once it became clear that the measures in place were ineffective.  It is particularly concerning that the response to R152’s first fall was to re-educate her on how to ensure that the brakes were set on her wheelchair.  There was no effort for staff to ensure that the brakes were in place on R152’s wheelchair; the onus was placed on the elderly resident.  Additionally, Morse Assessments were conducted on June 29, August 25, and September 20, 2021, and not after every fall as required by Petitioner’s Fall Policy.  P. Br. at 48; P. Ex. 6; CMS Ex. 15 at 1-3; CMS Ex. 17 at 10-12. 

Resident 161.  It is undisputed that R161 suffered three falls on June 1, July 6, and August 11, 2021.  Petitioner argues that R161 should be removed from this tag deficiency

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because the falls that occurred were “followed-up and acted on by the IDC team.”  P. Br. at 51.  Petitioner uses R161’s medical records for support, citing multiple documents that show that the IDC Team reviewed the falls as well as R161’s interventions and determined that “all care plans reviewed, updated and remain appropriate.”  P. Ex. 7 at 4.  The Treatment Administration Record shows a June 3, 2021 order for a tab alarm to the resident’s bed and chair, a July 6, 2021 order for a pad alarm for the bed and chair, and a July 15, 2021 order for hip protectors.  P. Br. at 50; P. Ex. 7 at 1.  The records only show that one Morse Assessment was conducted, which was on May 18, 2021 and not after any of R161’s falls.  CMS Ex. 18 at 30.  Petitioner asserts that new interventions were implemented after R161’s falls and they were sufficient to prevent foreseeable falls.  The records confirm that R161 had a history of falls upon admission and was deemed at moderate risk for falls, but that the interventions were not added until after her falls.  Id. at 7, 30.  Further, these interventions were documented as both remaining appropriate and ineffective.  Compare CMS Ex. 18 at 36 (“resident continues to not use call bell and attempt to self-ambulate or transfer self to bathroom frequently without calling for assistance despite multiple attempts at education.”) with CMS Ex. 18 at 37 (“interventions remain appropriate:  Yes, non-slip footwear, call bell within reach, tab and pad alarms, hip guards.”). 

Resident 213.  Petitioner acknowledges that R213 suffered falls on September 10 and 18, 2021, but argues that both falls were without injury.  P. Br. at 46-47.  Petitioner admits that R213’s care plan was not updated after the falls, but argues that “the documentation shows that the appropriate care was provided to the resident.”  P. Br. at 46.  Progress Notes dated September 16, 2021, indicate that the IDC Team conducted a Fall Review and determined that the interventions were appropriate and that R213’s space was to be monitored to ensure it was clutter free.  P. Ex. 5 at 14.  However, the September 16, 2021 IDC Team Fall Review is not listed in R213’s care plan.  See CMS Ex. 19 at 1-5 (clutter free space monitoring listed as a baseline intervention effective August 31, 2021).  Two days later, R213 suffered another fall.  Progress Notes show that the IDC Team conducted a Fall Review on September 23, 2021 to review R213’s September 18, 2021 fall.  P. Ex. 5 at 16.  However, the September 23, 2021 IDC Team Fall Review is not listed in R213’s care plan.  See CMS Ex. 19 at 1-5.  There are also no Morse Assessments in R213’s records for either fall.  See CMS Ex. 19; P. Ex. 5.  Petitioner states that “while it is unfortunate that R213 fell, the falls were unavoidable and, in any event, did not cause harm to the resident.”  P. Br. at 47.  According to Petitioner, R213 should be removed from this tag deficiency because the surveyors did not access all the information and documentation available to them, and that the record will show that “the surveyors refused [Petitioner’s] offer of assistance to access the electronic database to review the subject information.”  P. Br. at 44.  Even accepting Petitioner’s assertions as true, I find based on the record before me that Petitioner failed to follow its own policy by adjusting R213’s interventions, conducting Morse Assessments, and updating R213’s care plan after each fall assessment.  

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The Board has held that facilities are required to address foreseeable risks of harm from accidents “by identifying and removing hazards, where possible, or where the hazard is unavoidable because of other resident needs, managing the hazard by reducing the risk of accident to the extent possible.”  Meadowwood Nursing Ctr., DAB No. 2541 at 2 (2013) (quoting Me. Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005)).   Though the residents’ care plans were not consistently updated after the falls, Petitioner argues that the IDC Team reviewed some of the incidents and interventions after the falls occurred.  However, the facility’s fall policy requires that the IDC Team review falls weekly and conduct Morse Assessments after every fall event.  CMS Ex. 11 at 15.  The IDC Team reviews did not occur consistently.  Nor does the record show that a Morse Assessment was completed for each resident after each fall event.  Additionally, the interventions provided to several elderly residents, who were known fall risks, were ineffective to prevent falls.  Petitioner relied on using a tab alarm, monitoring footwear, and repeated education of the residents who suffered falls, two of which were diagnosed with dementia.  After multiple falls by multiple residents, additional measures were necessary to keep the residents safe.  Petitioner failed to have staff assist and observe residents transferring to and from their wheelchairs to ensure that wheelchair brakes were engaged.  

Petitioner argues that it took reasonable measures to minimize the risk of unpreventable falls and uses the residents’ progress notes to support its argument.  However, repeated falls by multiple residents prove differently.  Residents 152, 161, and 213 had a history of falls, cognitive difficulties, and were identified as fall risks.  Petitioner failed to take adequate precautions, which resulted in multiple falls, some of which resulted in serious injuries.  Though Petitioner did provide evidence of the IDC Team reviewing the falls and instituting interventions after some of its residents’ falls, Petitioner did not comply with all of its fall prevention policy’s requirements.  The records establish that Petitioner did not conduct Morse Assessments after each fall event, ensure follow-up fall progress notes were completed by the next shift, or ensure that second follow-up fall progress notes were completed by the subsequent shift, as the fall policy requires.  CMS Ex. 11 at 15.  Viewing the facts in the light most favorable to Petitioner, the undisputed evidence establishes that Petitioner failed to comply with 42 C.F.R. § 482.25(d)(1)(2). 

6.  Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(2)(i)-(iii) (Tag F657) because it failed to revise residents’ care plans with new interventions after falls. 

Under 42 C.F.R. § 483.21(b)(2) (Tag F657), a comprehensive care plan must be “reviewed and revised by the interdisciplinary team after each assessment, including both the comprehensive and quarterly review assessments.”  42 C.F.R. § 483.21(b)(2)(iii). 

CMS alleges that Petitioner was not in substantial compliance with Tag F657 because it did not make revisions in care plans after residents suffered from falls.  CMS Br. at 35.  In response, Petitioner asserts that it was in substantial compliance with this tag because

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it is not obligated to update care plans with every new intervention it implemented following a fall.  Additionally, it notes that it did not fail its obligation to review care plans following assessments.  P. Br. at 53-54. 

The undisputed evidence shows that care plans for Residents 152, 161, and 213 were not consistently updated, and the residents continued to suffer from falls that resulted in injury or harm.  Petitioner did not update the care plan for R152 after the first fall, R152 fell multiple times after that instance, with the last fall resulting in a bone fracture.  Petitioner only conducted one fall assessment for R161, and did not update R161’s care plans with interventions until after the falls, despite R161 being assessed as a fall risk upon admission.  Petitioner failed to follow its own policy by adjusting R213’s interventions, conducting fall assessments, and updating R213’s care plan after each fall assessment.  Because the record shows that Petitioner did not revise the care plans with new interventions after falls occurred, I conclude that Petitioner was not in substantial compliance with 42 C.F.R. § 483.21(b)(2). 

7.  CMS’s finding of immediate jeopardy is not clearly erroneous.  

CMS alleges that Petitioner’s violations of 42 C.F.R. §§ 483.12 and 483.70 constituted immediate jeopardy to resident health and safety.  Immediate jeopardy exists if a facility’s noncompliance has caused, or is likely to cause, “serious injury, harm, impairment, or death to a resident.”  42 C.F.R. § 488.301.  The regulation does not require that a resident actually be harmed.  Lakeport Skilled Nursing Ctr., DAB No. 2435 at 8 (2012).  CMS’s determination as to the level of a facility’s substantial noncompliance (which includes an immediate jeopardy finding) must be upheld unless it is “clearly erroneous.”  42 C.F.R. § 498.60(c).  The “clearly erroneous” standard imposes on facilities a heavy burden to overcome a finding of immediate jeopardy.  Appellate panels of the Board have sustained determinations of immediate jeopardy where CMS presented evidence “from which ‘[o]ne could reasonably conclude’ that immediate jeopardy exists.”  See, e.g., Barbourville Nursing Home, DAB No. 1962 at 11 (2005) (citing Florence Park Care Ctr., DAB No. 1931 at 27-28 (2004)), aff’d, Barbourville Nursing Home v. U.S. Dep’t of Health & Human Servs., 174 F. App’x 932 (6th Cir. 2006).  

Petitioner argues that the immediate jeopardy requirements outlined in the SOM, Appendix Q, are not met and that the facility was compliant with the conditions of participation.  P. Br. at 40.  Petitioner argues that to “to sustain a finding of immediate jeopardy, the deficiency statement must show more than a deficient practice; it must explain why the survey agency believes the resident is likely to suffer a serious adverse outcome.”  P. Br. at 42.  According to Petitioner, the surveyor does not include any information within the Form 2567 that “supports the conclusion that the facility administrator’s acts or omissions constitute non-compliance that ‘has caused or is likely

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to cause serious injury, harm, impairment, or death to a resident’ and certainly not on a widespread level.”  P. Br. at 43. 

I have determined, and the record establishes, that Petitioner was not in substantial compliance with 42 C.F.R. §§ 483.12(a)(1), 483.12(b)(1)-(3), and 483.70.  These deficiencies were cited at the immediate jeopardy level, which means that Petitioner’s noncompliance caused or was likely to cause serious injury, harm, impairment, or death to a resident.  Based on the undisputed facts, I find that CMS’s finding of immediate jeopardy is not clearly erroneous.  R105 displayed extremely aggressive behaviors towards both staff and residents and physically assaulted several residents.  One of the residents exhibited mental anguish and purposely avoided being in the same room as R105 following an assault that required sutures at a hospital.  Other residents cannot be made to suffer due to the actions of another resident.  

Petitioner’s failures to comply with Tags F600, F607, and F835 caused serious harm to residents, and was likely to cause serious injury if not addressed.  Thus, Petitioner has not met its burden of establishing that CMS’s immediate jeopardy determination is clearly erroneous. 

8. The CMPs imposed, $15,975 per day from October 6 through 9, 2021, and $1,515 per day from October 10 through December 16, 2021, are reasonable.

In response to Petitioner’s noncompliance, CMS imposed a per-day CMP of $15,975 for the immediate jeopardy period from October 6 through 9, 2021, and a per-day CMP of $1,515 for the noncompliance period from October 10 through December 16, 2021.  This resulted in a total CMP amount of $166,920.  CMS Ex. 3.  In assessing the CMP, CMS considered the seriousness of the facility’s noncompliance and its culpability.  CMS Br. at 38.  In this case, the range for a per-day CMP imposed at the immediate jeopardy level is $6,808-$22,320.  45 C.F.R. Part 102 (table).  The range for a per-day CMP imposed at a lower range deficiency is $112-$6,695.  45 C.F.R. Part 102 (table). 

Whether the penalty amount imposed is reasonable is a legal issue, not factual.  To overcome a summary judgment motion regarding the reasonableness of the penalties, the facility must present evidence sufficient to create a genuine dispute about facts affecting how the regulatory factors should be assessed.  Vibra Hospital of Charleston, DAB No. 3094 at 30 (2023); Crawford Healthcare, DAB No. 2738 at 19 (2016). 

I determine whether a penalty is reasonable based on the per-day penalty, not the total accrued penalty.  Vibra Hospital at Charleston, DAB No. 3094 at 30; Crawford Healthcare and Rehabilitation, DAB No. 2738 at 20.  In doing so, I apply the following factors which are listed in 42 C.F.R. § 488.438(f):  1) the facility’s history of noncompliance; 2) the facility’s financial condition; 3) the factors specified in 42 C.F.R. § 488.404; and 4) the facility’s degree of culpability, which includes neglect,

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indifference, or disregard for resident care, comfort, or safety.  See 42 U.S.C. §§ 1320a-7a(d)(2), 1395i-3(h)(2)(B)(ii)(I).  The absence of culpability is not a mitigating factor.  42 C.F.R. § 488.438(f)(4).  The factors listed in 42 C.F.R. § 488.404 include:  1) the scope and severity of the deficiency; 2) the relationship of the deficiency to other deficiencies resulting in noncompliance; and 3) the facility’s prior history of noncompliance in general and specifically with reference to the cited deficiencies.  See 42 U.S.C. §§ 1320a-7a(d)(1), (3), 1395i-3(h)(2)(B)(ii)(I).  

The regulations leave the decision regarding the choice of remedy to CMS, and the amount of the remedy to CMS and the ALJ, requiring only that the regulatory factors at 42 C.F.R. §§ 488.438(f) and 488.404 be considered when determining the amount of a CMP within a particular range.  42 C.F.R. §§ 488.408, 488.408(g)(2), 498.3(d)(11); see also 42 C.F.R. § 488.438(e)(2) and (3); Alexandria Place, DAB No. 2245 at 27 (2009); Kenton Healthcare, LLC, DAB No. 2186 at 28-29 (2008).  

The Board has explained that “there is a presumption that CMS has considered the regulatory factors in setting the amount of the CMP and that those factors support the CMP amount imposed by CMS.  Unless a facility contends that a particular regulatory factor does not support that CMP amount, the ALJ must sustain it.”  Coquina Ctr., DAB No. 1860 at 32 (2002) (emphasis added).  Thus, the burden is not on CMS to explain its decision-making process or to explain the relative weights assigned to each deficiency to support the CMP amounts imposed.  If a facility contends that a regulatory factor does not support the CMP amount, CMS must then produce evidence as to that factor.  Id.  However, the burden is on the facility to demonstrate that a reduction is necessary to make the CMP amount reasonable.  Heritage Plaza Nursing Ctr., DAB No. 2017 at 22 (2017). 

Petitioner argues throughout its brief that the CMP is unreasonable because it is unwarranted since the facility was in substantial compliance with all the cited regulations.  P. Br. at 27, 30, 37, 40.  However, Petitioner does not dispute the amount or duration of the CMP.  CMS presented no evidence of Petitioner’s noncompliance history and Petitioner does not argue that it is unable to pay the CMPs. 

Applying the remaining factors, I find that the seriousness of Petitioner’s noncompliance and Petitioner’s culpability are sufficient to justify the amount of the CMPs.  Petitioner is culpable for its failure to protect its residents from foreseeable resident-to-resident abuse, which posed immediate jeopardy to its residents’ health or safety.  Petitioner is also culpable for its failure to provide its residents with adequate supervision and assistance devices to prevent falls and to update residents’ care plans after their falls, which caused multiple residents actual harm. 

The $15,975 per-day CMP amount imposed for the immediate jeopardy level noncompliance with Tags F600, F607, and F835 falls in the mid-range of the possible

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CMP amounts and is justified.  Likewise, the $1,515 per-day CMP amount imposed for the continued noncompliance with Tags F689, F657, F607, F835 and F600 at the non-immediate jeopardy level, is within the lower range of the possible CMP amounts and is justified. 

IX.  Conclusion

CMS’s Motion for Summary Judgment is GRANTED.  Petitioner’s Motion for Summary Judgment is DENIED.  From October 6, 2021 through December 16, 2021, Petitioner’s facility was not in substantial compliance with Medicare program requirements at 42 C.F.R. §§ 483.25(d)(1), (2) (Tag F689), 483.12(a)(1) (Tag F600), 483.12(b)(1)-(3) (Tag F607), 483.70 (Tag F835), and 483.21(b)(2)(i)-(iii) (Tag F657).  From October 6, 2021 through October 9, 2021, Petitioner’s deficiencies posed immediate jeopardy to resident health and safety.  The penalties imposed – $15,975 per day for four days of immediate jeopardy and $1,515 per day for 68 days of substantial noncompliance that did not pose immediate jeopardy – are reasonable.