Bria of Cahokia, DAB CR6788 (2026)

DECISION

Petitioner, Bria of Cahokia, is a long-term care facility located in Cahokia, Illinois, that participates in the Medicare program.  Based on four surveys, completed from March 14 through May 13, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with multiple Medicare program requirements and imposed a $1,655 per-day civil-money penalty (CMP) for 53 days of substantial noncompliance (March 21 through May 12, 2023).  

Petitioner filed two separate appeals, which I consolidated.  CMS now moves for summary judgment. 

For the reasons explained below, I grant CMS’s motion.  Based on the undisputed facts, and drawing all reasonable inferences in Petitioner’s favor, I find that, from March 21 through May 12, 2023, the facility was not in substantial compliance with Medicare program requirements and that the amount of the CMP is reasonable. 

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.  

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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).  

Docket Number C-23-510

The March 14, 2023 complaint investigation survey.  On the evening of March 9, 2023, the facility reported, to the Illinois Department of Public Health (state agency), allegations that one of its residents had been sexually abused.  CMS Ex. 19.  Shortly thereafter, staff from Belleville Memorial Hospital reported that it had treated the sexually abused nursing home resident.  CMS Ex. 14. 

The state agency sent a surveyor to the facility to investigate.  The surveyor completed her complaint investigation survey on March 14, 2023.  Based on her findings, CMS determined that the facility was not in substantial compliance with: 

• 42 C.F.R. § 483.12(b)(1)-(5)(ii)-(iii) (Tag F607 – freedom from abuse, neglect, and exploitation: written policies and procedures) 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). 

CMS Exs. 1, 12; CMS Ex. 118 at 1-3 (Thacker Decl. ¶¶ 2, 3, 5). 

The March 28, 2023 survey.  Surveyors returned to the facility on March 21, 2023, to investigate additional complaints and to conduct the facility’s annual recertification survey.  CMS Ex. 35.  They completed the survey on March 28, 2023.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with the following Medicare participation requirements: 

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect, and exploitation) 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);  

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• 42 C.F.R. § 483.21(b)(2)(i)-(iii) (Tag F657 – comprehensive care plans:  timing, development, and revisions) 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(d) (Tag F689 – quality of care:  accident prevention) cited at scope-and-severity level G;
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692 – quality of care:  assisted nutrition and hydration) cited at scope-and-severity level G;
• 42 C.F.R. § 483.25(g)(4)-(5) (Tag F693 – quality of care:  assisted nutrition and hydration, enteral feeding) cited at scope-and-severity level D;
• 42 C.F.R. § 483.35(b)(1)-(3) (Tag F727 – nursing services:  registered nurses) cited at scope-and-severity level F (widespread substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.45(a)(b)(1)-(3) (Tag F755 – pharmacy services:  procedures and service consultation) cited at scope-and-severity level D;
• 42 C.F.R. § 483.45(f)(2) (Tag F760 – pharmacy services:  medication errors) cited at scope-and-severity level G;
• 42 C.F.R. § 483.60(i)(1)-(2) (Tag F812 – food and nutrition services:  food safety) cited at scope-and-severity level F;
• 42 C.F.R. § 483.70(e)(1)-(3) (Tag F838 – administration:  facility assessment) cited at scope-and-severity level F; and
• 42 C.F.R. § 483.75(c), (d), (e), (g)(2)(i)-(ii) (Tag F867 – quality assurance and performance improvement program) cited at scope-and-severity level F.   

CMS Ex. 32; CMS Ex. 118 at 1, 3 (Thacker Decl. ¶¶ 2, 7). 

In a notice letter, dated April 5, 2023, the state agency advised Petitioner that, based on the March 14 and 28 survey findings, CMS had authorized it to impose a penalty:  discretionary denial of payment for new admissions.  See 42 C.F.R. § 488.417(a).  The letter also advised the facility that the state agency was recommending that CMS impose a CMP.  CMS Ex. 2. 

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Petitioner appealed to the Civil Remedies Division, which docketed the appeal as C-23-510. 

Docket Number C-23-766

The May 5, 2023 complaint investigation survey.  On May 2, 2023, a hospital social worker contacted the state agency to report that a confused and seriously impaired resident (oxygen-dependent, double amputee) had been admitted to the hospital after the resident’s family member signed him out of the facility and left him alone in the parking lot.  No one from the facility had contacted the person serving as the resident’s power-of-attorney to determine whether it was safe to allow the resident to leave with the family member.  CMS Ex. 92; see CMS Ex. 87, 89. 

Again, a state agency surveyor went to the facility to investigate and completed an investigation survey on May 5, 2023.  CMS Ex. 86.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with:  

• 42 C.F.R. § 483.45(f)(2) (Tag F760 – pharmacy services: medication errors) cited at scope-and-severity level G. 

CMS Ex. 84; CMS Ex. 118 at 1 (Thacker Decl. ¶ 2). 

The May 12, 2023 complaint investigation survey.  Responding to yet another complaint, a survey team returned to the facility and completed a complaint investigation survey on May 12, 2023.  Based on the survey findings, CMS determined that the facility was still not in substantial compliance with:  

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect, and exploitation), cited at scope-and-severity level D.

CMS Ex. 100. 

Thereafter, CMS determined that the facility returned to substantial compliance on May 13, 2023.  CMS Ex. 9 at 2.  CMS imposed a CMP of $1,655 per day for 53 days of substantial noncompliance (March 21 through May 12, 2023).  (Total:  $87,715).  Id. 

Petitioner appealed, and the case was docketed as C-23-766. 

The Consolidated Case

I determined that, in the interest of administrative economy and to conserve resources, it was appropriate to consolidate these two related appeals.  In an order, dated September 

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18, 2023, I consolidated the requests for hearing under docket number C-23-766, dismissing the matter docketed as C-23-510. 

CMS now moves for summary judgment, which Petitioner opposes. 

The parties’ submissions.  With its pre-hearing brief and motion for summary judgment (CMS Br.), CMS has filed 118 exhibits (CMS Exs. 1-118). 

Petitioner filed its own prehearing brief and opposition to summary judgment (P. Br.) with five attachments that it labels as exhibits (P. Exs. 1-5). 

CMS objects to four of Petitioner’s five proffered “exhibits”:  P. Exs. 1, 2, 3, and 5. 

• P. Exs. 1 and 2 are copies of the Petitioner’s hearing requests with, respectively, 92 and 130 pages of attachments.  CMS argues that these duplicate pleadings have already been docketed.  This is certainly true, and submitting them as exhibits violates Civil Remedies Division (CRD) Procedures, which explicitly proscribe filing, as exhibits, “any documents that are already in the record (such as the hearing request).”  CRD Procedures ¶ 14a; see Standing Order at 1 (¶ 1).  The documents attached to the hearing requests, which are not individually identified, appear to duplicate CMS’s submissions.  CRD Procedures also advise parties not to file as an exhibit a document already filed as an exhibit by the opposing party.  Id.  In any event, Petitioner does not even cite to any of those attachments.  With a limited exception (P. Ex. 5 – see below), it relies solely on CMS’s exhibits.  See Fed. R. Civ. P. 56(c) (requiring the judge to consider the material facts cited by the parties, but not other materials).  
• P. Ex. 3 is my September 18, 2023 consolidation order, which is also already in the record and, like the hearing request, should not have been filed as an exhibit.  Id.; CRD Procedures ¶ 14a.  
• P. Ex. 5 purports to be the written direct testimony of the facility’s current administrator, but, as CMS points out in its objection, the document is unsigned and does not indicate that it was “made under oath” or signed “under penalty of perjury,” as required by my Standing Order at 5 (¶ 8).  Although it has had ample time, Petitioner did not correct these defects after CMS pointed them out.  And the defects are not the document’s only problem.  The purported testimony lacks foundation and contains no actual evidence.  The current administrator does not claim any particular knowledge of the facts underlying this case; she makes one gratuitous and unsupported assertion:  that the facility complied with federal requirements.  This is not evidence; it is a legal conclusion.  See W. Texas LTC Partners, Inc., DAB No. 2652 at 6-7 (2015), aff’d, W. Tex. LTC Partners, Inc. v. Dep’t of Health & Hum. Servs., 843 F.3d 1043 (5th Cir. 2016); see Fed. R. Evid. 

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• 602 (providing that a witness may testify to a matter only if sufficient evidence is introduced to support a finding that the witness has personal knowledge of the matter).  

I therefore agree that these documents would not be admissible.  However, because I decide this case on summary judgment, I consider the proffered evidence (to the extent required by Fed. R. Civ. P. 56(c)(3) (see discussion below) to determine whether it creates a material fact in dispute but need not admit the exhibits into the record.  Lilia Gorovits, M.D., P.C., DAB No. 2985 at 3 n.4 (2020), aff’d sub nom. Gorovits v. Becerra, No. 20-1850, 2021 WL 1962903 (E.D. Pa. May 17, 2021); Ill. Knights Templar Home, DAB No. 2274 at 6-7 (2009) (holding that an ALJ must review all proposed exhibits submitted in support of or in opposition to a motion for summary judgment; the ALJ is not required to admit those exhibits into the record).  The exhibits are “properly treated as an offer of proof,” to be evaluated, as necessary, to determine whether a genuine issue of material fact exists.  Ill. Knights Templar Home, DAB No. 2274 at 6-7. 

ISSUES

As a threshold matter, I consider whether summary judgment is appropriate.  

On the merits, the issues before me are:  

• From March 21 through May 12, 2023, was the facility in substantial compliance with Medicare program requirements, and
• If the facility was not then in substantial compliance, is the $1,655 per-day penalty reasonable?   

DISCUSSION

Summary judgment.  Although the federal rules do not apply directly to these administrative proceedings, in considering summary judgment, I am “procedurally and substantively guided by Rule 56” of the Federal Rules of Civil Procedure.  CRD Procedures § 19; see Livingston Care Ctr. v. U.S. Dep’t. of Health & Hum. Servs., 388 F.3d 168, 172 (6th Cir. 2004). 

Summary judgment is appropriate if a case presents no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Southpark Meadows Nursing & Rehab. Ctr., DAB No. 2703 at 5 (2016); W. Texas LTC., DAB No. 2652 at 5; Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. 

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Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.1 

What evidence I must consider.  Rule 56 provides that, in determining whether material facts are in dispute, I am required to consider only the material facts cited by the parties in support of or in opposition to the motion.  However, I “may consider” other materials submitted.  Fed. R. Civ. P. 56(c)(3). Accord, Administrative Procedures Act, 5 U.S.C. § 556(d) (providing that a rule or order be based on consideration of the whole record or those parts cited by a party and supported by reliable, probative, and substantial evidence). 

What the parties must show.  The moving party may show the absence of a genuine factual dispute by presenting evidence so one-sided that it must prevail as a matter of law or by showing that the non-moving party has presented no evidence “sufficient to establish the existence of an element essential to [that party’s] case, and on which [that party] will bear the burden of proof at trial.”  Livingston Care Ctr. v. U.S. Dep’t of Health & Hum. Servs., 388 F.3d 168, 173 (6th Cir. 2004) (quoting Celotex, 477 U.S. at 322).  To avoid summary judgment, the non-moving party must then act affirmatively by tendering evidence of specific facts showing that a dispute exists.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see also Vandalia Park, DAB No. 1939 (2004); Lebanon Nursing & Rehab. Ctr., DAB No. 1918 (2004).  The non-moving party may not simply rely on denials but must furnish admissible evidence of a dispute concerning a material fact.  Ill. Knights Templar, DAB No. 2274 at 4; Livingston Care Ctr., DAB No. 1871 at 5 (2003).  In doing so, the non-moving party must show more than “some metaphysical doubt as to the material facts.”  W. Tex. LTC Partners, DAB No. 2652 at 6; 1866ICPayday.com, L.L.C., DAB No. 2289 at 3 (2009) (quoting Matsushita, 475 U.S. at 587). 

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

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moving party.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 8 (2021); 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).  However, drawing factual inferences in the light most favorable to the non-moving party does not require that I accept the non-moving party’s legal conclusions or draw inferences that are not reasonable.  Vibra Hosp. of Charleston – TCU, DAB No. 3094 at 11 (2023); W. Tex. LTC, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); see Green Valley Health Care & Rehab. Ctr., DAB No. 2947 at 8 (2019) (quoting Johnson v. Perez, 823 F.3d, 701, 705 (D.C. Cir. 2016)) (noting that a genuine factual dispute does not exist “when a putatively disputed body of evidentiary material could not, even assuming a sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal position.”); Brightview, DAB No. 2132 at 10 (entry of summary judgment upheld where inferences and views of non-moving party are not reasonable). 

Summary judgment applied to administrative review in Medicare cases.  It is well-established that an administrative law judge (ALJ) is empowered to decide a case on a motion for summary judgment, without an evidentiary hearing.  Shah v. Azar, 920 F.3d 987, 996 (5th Cir. 2019) (citing Cedar Lake Nursing Home v. U.S. Dep’t of Health & Hum. Servs., 619 F.3d 453, 457 (5th Cir. 2010)); see Fal-Meridian, Inc. v. U.S. Dep’t of Health & Hum. Servs., 604 F.3d 445, 449 (7th Cir. 2010).  There is nothing extraordinary about an ALJ granting summary judgment.  As the Court of Appeals for the Seventh Circuit Court has explained:  “All it means for a decision to be based on a grant of summary judgment is that there are no issues that would benefit from being resolved in an evidentiary hearing.”  Fal-Meridian, 604 F.3d at 449 (emphasis added); see Cedar Lake Nursing Home, 619 F.3d 453, 457-58 (affirming summary judgment that was based on the ALJ’s “specific, undisputed findings of fact,” accepting as true the facts presented by the Petitioner). 

1. 1. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not follow the facility policy directing them to preserve evidence of an alleged sexual assault. This failure put the facility out of substantial compliance with 42 C.F.R. § 483.12.2

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Program Requirements.  Act § 1819(c)(1)(A)(ii); 42 C.F.R. § 483.12 (tags F600, F607).3  The Act requires that facility residents be free from “physical or mental abuse.”  Act § 1819(c)(1)(A)(ii).  Consistent with that provision, the regulation governing abuse prevention mandates that each resident has the right to be free from abuse, neglect, and exploitation.  42 C.F.R. § 483.12. 

“Abuse” is defined as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish.”  It includes verbal, sexual, physical, and mental abuse.  “Willful” means that the “individual acted deliberately, not that the individual must have intended to inflict injury or harm.”  42 C.F.R. §§ 483.5, 488.301. 

To keep residents free from abuse, the facility must develop and implement written policies and procedures that prohibit and prevent abuse, neglect, and exploitation of residents.  It must establish policies and procedures to investigate any such allegations; and it must train staff on activities that constitute abuse and neglect, procedures for reporting incidents of abuse and neglect, dementia management, and resident abuse prevention.  42 C.F.R. § 483.12(b)(1)-(3); see 42 C.F.R. § 483.95(c).  A facility does not comply with section 483.12 if it fails to develop policies and procedures that are adequate to prevent abuse and neglect.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 5 (2017). 

The facility must have evidence that all alleged violations are thoroughly investigated.  42 C.F.R. § 483.12(c)(2).  As the Board has explained, failing to investigate an allegation of abuse has broader implications, putting other facility residents at risk.  Beverly Health Care Lumberton, DAB No. 2156 at 15 (2008).  In affirming the Board’s decision in Beverly, the Court of Appeals for the Fourth Circuit agreed that the facility’s failure to implement its policies for reporting and investigating abuse “indicated a wider systemic problem in the facility” that left its residents “at real risk for serious harm.”  Beverly Health Care Lumberton v. Leavitt, 338 F. App’x. 308 at 314 (4th Cir. 2009); Century Care of Crystal Coast, DAB No. 2076 at 25 (2007) (concluding that, where an incident went unreported and uninvestigated, the facility could not even identify, much less correct, the flaws in its system). 

The March 9, 2023 incident.  CMS has come forward with evidence establishing that, contrary to facility policy, a nurse aide failed to preserve evidence of a potential sexual assault.  The incident involved two residents, identified as R1 and R2. 

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Resident 1 (R1) was a 59-year-old man, initially admitted to the facility on November 18, 2008.  CMS Ex. 23 at 1; CMS Ex. 49 at 1.  He suffered from a long list of impairments, including:  systemic lupus erythematosus; epilepsy; metabolic encephalopathy; paranoid schizophrenia; major depressive disorder; alcohol abuse; and a cerebral infarction.  CMS Ex. 23 at 2; CMS Ex. 49 at 2.  According to his care plan, he was verbally aggressive and difficult to redirect at times.  He engaged in peer-to-peer altercations.  CMS Ex. 23 at 4; CMS Ex. 49 at 3. 

He had cognitive impairments.  His short-term memory was severely impaired, and he was confused.  CMS Ex. 23 at 13.  Entries in his care plan, dated February 10, 2022, and April 6, 2022, describe altercations with other residents, leading the facility to petition for an involuntary psychiatric hospitalization.  In fact, R1 had a history of serious criminal behavior:  aggravated battery; resisting police; criminal damage to property; and assault with a deadly weapon.  A criminal history analysis put him at “moderate risk.”  CMS Ex. 23 at 14, 17. 

Resident 2 (R2) was a 56-year-old woman, admitted to the facility on July 1, 2021.  CMS Ex. 25 at 1.  She also suffered from a long list of impairments, including hemiplegia following a cerebral infarction, congestive heart failure, major depressive disorder, and suicidal ideation.  She had a history of cocaine use.  CMS Ex. 25 at 2, 28. 

Her memory was impaired, and she had difficulty with decision-making, insight, logic, planning, and organizing her thoughts.  CMS Ex. 25 at 4.  She scored 3 on her BIMS (Brief Interview of Mental Status) exam, indicating a severe cognitive impairment.  Among other problems, she did not know the year or the month.  CMS Ex. 25 at 31-33; see CMS Ex. 20 at 4. 

Her care plan identified her as at risk for abuse and neglect related to her cognitive deficits, anxiety, and history of cocaine abuse.  She had a history of peer-to-peer altercations.  CMS Ex. 25 at 15.  The plan also identified, as problems, her socially inappropriate behaviors related to seeking out male attention in public spaces.  CMS Ex. 25 at 26.  Among the interventions called for was “enhanced supervision, as needed.”  Id. 

Facility policy.  As the Board has repeatedly explained, a facility’s policy for implementing a regulatory requirement reflects the facility’s own judgment about how best to achieve substantial compliance.  Failing to comply with its own policies “can support a finding that the facility did not achieve compliance with the regulatory standard.”  Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017); see The Bridge at Rockwood, DAB No. 2954 at 19 (2019) (ruling that, absent contrary evidence, it is reasonable to presume that the facility’s policies reflect professional standards); Green Valley Healthcare & Rehab. Ctr., DAB No. 2947 at 6 (2019) (citing The Laurels at Forest Glenn, DAB No. 2182 at 18 (2008)); N. Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hills Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “the 

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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.”); Life Care Ctr. of Bardstown, DAB No. 2233 at 21-22 (2009) (finding that a facility’s failing to comply with its own policies can constitute a deficiency). 

This principle applies specifically to policies addressing abuse prevention.  A facility’s failure to follow its anti-abuse policy can put it out of substantial compliance with section 483.12, as can its failure to follow its other policies and procedures, where those policies define what a facility deems “the goods and services necessary to avoid physical harm.”  Avalon Place Kirbyville, DAB No. 2569 at 9 (2014). 

Here, the facility had in place a policy titled, “Resident Protection Investigation Paths,” which required staff to take “all reasonable steps to preserve evidence” of an alleged sexual assault.  The policy included these specific instructions:  Do not shower, bathe, or change the clothes of the person attacked.  If clothes have been changed, save them for inspection.  CMS Ex. 12 at 2; CMS Ex. 118 at 2-3 (Thacker Decl. ¶ 5); see CMS Ex. 64 at 5 (requiring the facility to train its employees on their obligations “when receiving an allegation of abuse”). 

The incident.  Although the facility’s report to the state agency is short on details, it indicates that, on the evening of March 9, 2023, a nurse aide entered R2’s bedroom and discovered R1 and R2 engaged in sexual activity (“in a compromising manner”).  CMS Ex. 19 at 5.  The facility notified R2’s physician, her responsible party, the state agency, and law enforcement.  CMS Ex. 19 at 7. 

The report does not mention that, notwithstanding the facility’s policy, the nurse aide cleaned the resident almost immediately – before the incident was reported to management and before an investigation began.  In an interview with Surveyor Kathleen Thacker, the facility’s Director of Nursing (DON) confirmed that the nurse aide should not have cleaned the resident:  “Anytime there is an allegation of sexual abuse[,] staff are not to clean up the resident and/or remove any evidence.  I would have expected [the nurse aide] to not clean her up. . . .and wait for the police[,] so that we could preserve the evidence.”  CMS Ex. 20 at 3, 5. 

Surveyor Thacker interviewed the licensed practical nurse (LPN) to whom the nurse aide initially reported the incident.  The LPN confirmed that the nurse aide told her that R1 was in R2’s room, and R2 looked distressed.  The LPN went to R2’s room and “redirected” R1 by taking him out of the room.  When she returned to R2’s room, the nurse aide had already “changed [the resident], cleaned her up[,] and put her to bed.”  CMS Ex. 20 at 1.  Only later did the LPN learn that R1 had inappropriately touched R2 and that the police were called.  According to the LPN, the nurse aide “did not communicate with me properly and let me know what had happened.”  CMS Ex. 20 at 2.  

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The LPN was not sure why the nurse aide “did not follow protocol and washed and cleaned R2.”  CMS Ex. 20 at 2. 

The nurse aide told Surveyor Thacker that, after she witnessed the incident, R2

• looked real upset like she wanted to cry.  I asked her if she wanted R1 to touch her[,] and she said, “no.”  I went ahead and cleaned up R2 and changed her adult diaper and put on fresh clothes.  I did not realize I was not supposed to do that at the time. . . .  In [hindsight,] I should not have cleaned her up.  

CMS Ex. 20 at 4; CMS Ex. 118 at 2 (Thacker Decl ¶ 4).  The local police detective confirmed, “Any time the facility suspects sexual abuse/assault[,] they should not bath[e] and or shower the resident because . . . we need as much evidence . . . as possible without contamination[,] and we do not want it removed and or washed away.”  CMS Ex. 20 at 5. 

When interviewed by Surveyor Thacker, R2 was not able to speak in complete sentences. Answering yes-or-no questions, she shook her head, “no” when asked if R1 had touched her in a way that she did not want to be touched.  CMS Ex. 27 at 1; CMS Ex. 118 at 2 (Thacker Decl. ¶ 3).4 

Petitioner’s response.  For its part, Petitioner presents no evidence establishing a dispute over any of these facts.  It does not deny that the facility’s policy required staff to preserve evidence of an alleged or suspected sexual assault.  It does not challenge its employees’ statements nor any other evidence establishing that the nurse aide violated the facility policy.  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 that refuted the statements that surveyors claimed they made); Omni Manor Nursing Home, DAB No. 1920 at 11 (2004) (holding that statements of facility employees to the surveyors may constitute substantial evidence). 

Instead, Petitioner presents a non sequitur of an argument.  Petitioner points to provisions of a different policy and asserts that staff complied with its provisions to report and investigate allegations of abuse.  Based on this, Petitioner declares it “clear” that the facility was in substantial compliance with section 483.12(b).  P. Br. at 16.  In fact, by not 

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preserving evidence, the staff member compromised the facility’s ability to investigate thoroughly the allegation of abuse, which means that staff did not comply with the facility policy to “promptly and aggressively” investigate allegations of abuse.  See CMS Ex. 64 at 1, 5.5 

Moreover, even if I agreed that the facility complied with the policy provisions that Petitioner points to (which I do not), compliance with some requirements – and noncompliance with others – does not put the facility in substantial compliance.  Presumably, every facility complies with some requirements – it is unlikely that any facility is 100% noncompliant.  I am necessarily concerned with the requirements that the facility violated, not those that it did not violate. 

CMS’s motion is adequately supported by the statement of deficiencies and other evidence (including the surveyor declaration, the survey notes, and the facility’s own documents).  Petitioner has tendered no evidence of specific facts establishing a dispute over the facts that CMS proffers.  See Southpark Meadows, DAB No. 2073 at 6 (concluding that CMS’s Motion for Summary Judgment was adequately supported by the Statement of Deficiencies, and Petitioner needed to submit relevant counter-evidence to create disputes and defeat the motion); Azalea Ct., DAB No. 2352 at 2, 3 (2010), aff’d sub nom. Azalea Ct. v. U.S. Dep’t of Health & Hum. Servs., 482 F. App’x 460 (11th Cir. 2012).  

Where, as here, in violation of the facility’s policy, a staff member does not take appropriate measures to preserve evidence of possible sexual abuse, the facility is not in substantial compliance with section 483.12.  Columbus Nursing & Rehab. Ctr., DAB No. 2247 at 12-13 (2009).  Because a nurse aide did not follow the facility’s policy to preserve evidence of a suspected sexual assault and was not even aware of that policy, the facility was not in substantial compliance with section 483.12, and CMS is entitled to summary judgment on that issue. 

2. 2. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility repeatedly failed to protect residents from resident-on-resident abuse. Failing to prevent such abuse put the facility out of substantial compliance with 42 C.F.R. § 483.12. 

To keep its residents free from abuse, the facility must “take reasonable steps to prevent abusive acts, regardless of their source.”  Pinehurst Healthcare & Rehab. Ctr., DAB No. 2246 at 6 (2009).  A facility must protect its residents from the harmful behaviors of other residents.  Where facility staff know or should know that a resident harms other 

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residents, the facility must not leave its residents vulnerable to that behavior.  Kindred Transitional Care & Rehab - Greenfield, DAB No. 2792 at 11 (2017). 

Facility policy:  preventing abuse.  As part of the residents’ assessments and comprehensive care plans, the facility’s abuse policy directs staff to identify residents who are vulnerable for abuse and residents who have triggers and behaviors that might lead to conflict.  Through the care-planning process, staff are directed to “identify any problems, goals and approaches” that would reduce the chance of abuse for these residents.  The policy directs staff “to monitor the goals and approaches on a regular basis and [to] update as necessary.”  CMS Ex. 64 at 5 (emphasis added). 

“For residents who are identified” as offenders, the policy directs the facility to incorporate the identified “Offender Report and Recommendations Report,” including the security measures listed, into the identified offender’s plan of care.  Id. 

The policy also directs supervisors to monitor the staff’s ability “to meet the needs of residents.”  CMS Ex. 64 at 6. 

The ongoing abuse in the facility.  When a survey team returned to the facility for the March 28 survey, they discovered additional evidence of the facility’s noncompliance with section 483.12.  The resident who was identified as R1 during the March 14, 2023 complaint investigation is now referred to as R21.  R21 instigated or aggravated multiple incidents of abuse.  See CMS Exs. 23, 49.  As noted above, he was a 59-year-old man, suffering from a long list of impairments and had a history of serious criminal behavior.  CMS Ex. 49 at 1-3, 17.  

A “criminal history analysis,” prepared by the state agency on November 7, 2014, placed R21 at “moderate risk,” requiring “closer supervision and more frequent observation than standard or routine” for most nursing home residents.  “Regular monitoring should be attentive to behavioral changes,” which could indicate a need for closer observation or sustained visual monitoring.  The report directed the facility to assess the resident periodically to determine whether the level of supervision was adequate.  CMS Ex. 49 at 10.  The report concluded that, if the resident’s psychiatric condition escalates, and additional incidents occur, “high risk supervision status is recommended.”  Id. 

As noted above, R21’s care plan designated him as at risk for abuse (inflicting it on others).  The plan set the following goal:  “Staff will monitor the well-being of others.  Resident will have zero episodes of abuse and neglect throughout next review.”  CMS Ex. 49 at 3.  Among other interventions, the plan listed “enhanced supervision,” and keeping R21 “separated and redirected” from other residents.  Id. 

To address his aggressive behavior, the plan directed staff to (among other interventions):  administer psychoactive medications, as ordered; calm the resident if he becomes abusive 

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by explaining, “We do not touch other people”; intervene and communicate assertively that the resident must exercise control over impulses and behavior; refer him to a mental health professional; and put him on the 15-minute check program.  CMS Ex. 49 at 5.  To address his history of criminal behavior, the plan called for similar interventions:  evaluate his ability to control his impulses and document; follow the facility protocol for addressing substance abuse; give psychoactive medication, as ordered; and refer him to a mental health professional.  CMS Ex. 49 at 6. 

The plan did not prevent episodes of abuse.  Among them: 

The April 6, 2022 incident.  On April 6, 2022, four residents (three men and a woman), including R21, were in the day area, waiting to leave the facility in order to smoke.  One of the men (R35) bumped the woman’s leg.  She asked him to move.  When he didn’t respond, she shouted at him to move, and R21 hit him.  R35 pushed R21, causing him to fall into the back of a wheelchair, tipping it over and spilling its occupant onto the ground.  Staff separated the residents and sent R21 to a psychiatric hospital, where he was admitted for treatment and observation.  CMS Ex. 49 at 17.  

The May 24, 2022 incident.  On the facility patio during a smoke break, an unhappy male resident (R39) lunged at a female staff member.  R21 stepped between the resident and the staff member, and a fight ensued between R21 and R39.  The residents lost their balance and fell to the ground.  R21 struck R39 in the face.  Staff intervened and separated them.  R21 was apparently uninjured.  R39 suffered “superficial” scrapes and bruises on his face.  CMS Ex. 49 at 14. 

The December 11, 2022 incident.  R21 was involved in an altercation with R110, a 69-year-old male resident suffering from an inguinal hernia, moderate malnutrition, weakness, dementia, and cerebrovascular disease (causing cognitive deficits).  CMS Ex. 49 at 12; CMS Ex. 60 at 1, 2, 9.  R21 saw R110 “being really aggressive” with a female nurse aide.  R21 “punched [R110] in the eye,” causing a laceration.  The facility sent R110 to the emergency room for evaluation and treatment of the facial laceration and an abrasion of the left cornea.  CMS Ex. 49 at 12; CMS Ex. 60 at 9; CMS Ex. 61. 

These were not the only incidents involving R21.  See CMS Ex. 45 at 4-7 (describing physical altercations on August 16, 2022, October 26, 2022, December 4, 2022, and March 21, 2023). 

Thus, the facility knew that R21 assaulted other residents.  Yet, it left its residents vulnerable to his attacks.  His care plan called for “enhanced supervision” and keeping him separated from other residents.  CMS 49 at 3.  But on April 6, 2022, he and three other residents congregated at the exit door, close enough to bump into each other.  Where staff were at the time is not apparent, but they were not supervising R21 closely enough to prevent his attack on another resident.  Although staff were in the area during 

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the May 24 and December 11 attacks, for reasons that are not explained, they did not prevent them. 

Notwithstanding how ineffective the interventions were, the facility did not try new approaches. 

R21’s criminal history analysis, which facility policy directed staff to incorporate into his care plan, anticipated that R21’s behaviors could change and, if the supervision level proved inadequate, and additional incidents occurred, directed the facility to move the resident into “high risk supervision status.”  CMS Ex. 49 at 3; CMS Ex. 64 at 5.  No evidence suggests that the facility considered moving R21 into high-risk supervision status. 

In interviews, the DON conceded that, despite the attacks, R21 had not been placed on 15-minute checks or enhanced supervision.  He was not moved to a high-risk category.  CMS Ex. 44 at 4.6 

Notwithstanding the number of altercations and the intervention called for in his care plan, the facility had no documentation showing that it completed 15-minute checks.  CMS Ex. 45 at 7.  Moreover, when the plan proved ineffective, the facility did not amend it to address the ongoing problem of the resident abusing others. 

Ongoing abuse – May 8, 2023 incident.  A surveyor returned to the facility on May 12, 2023, to investigate another reported incident of resident-on-resident abuse.  CMS Exs. 100, 112 at 4-9. 

R110 (from the March 28 survey) – here referred to as R1 – was involved in the December 11, 2022 fight with R21, during which R21 punched him in the eye, causing a facial laceration and cornea abrasion and sending him to the emergency room.  CMS Ex. 60 at 9.  R1 was a 69-year-old man, admitted to the facility on October 28, 2022.  CMS Ex. 110 at 1.  As noted above, he had an inguinal hernia, moderate malnutrition, weakness, dementia, and cerebrovascular disease (causing cognitive deficits).  He was weak and anemic and had moderate to extreme anxiety.  CMS Ex. 110 at 2, 12.  His BIMS score was 3, indicating that he was severely cognitively impaired.  CMS Ex. 110 at 22. 

His care plan identified him as at risk for abuse (inflicting it on others).  He had a history of peer-to-peer altercations (March 3, May 6, and May 8, 2023) and was known to get upset and swing at staff who attempted to redirect him.  CMS Ex. 110 at 16.  R1’s care 

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plan called for many of the same interventions listed in R21’s care plan, including “enhanced supervision,” administering psychoactive medications, as ordered; and providing “support and reassurance.”   CMS Ex. 110 at 15-17. 

R3 was a 63-year-old man, originally admitted to the facility on October 18, 2022, with diagnoses of Parkinson’s disease, schizoaffective disorder, violent behavior, schizophrenia, antisocial personality disorder, and oppositional defiant disorder.  CMS Ex. 111 at 1-3, 25.  He was cognitively intact, with a BIMS score of 15.  CMS Ex. 111 at 26.  He required assistance with daily care needs.  CMS Ex. 111 at 5.  Notwithstanding his significant history of violence and aggression, the facility considered him appropriate for admission because he remained stable during the admission screening process.  CMS Ex. 111 at 19.  

R3’s care plan identified him as at risk for abuse and neglect related to his paranoid schizophrenia.  He had a disturbing history of violence toward his family and healthcare workers.  He also had a history of making false accusations against staff.  CMS Ex. 111 at 11.  The plan lists multiple instances of his aggressive and abusive behaviors: 

• November 1, 2022 – verbal and physical altercation with staff.  
• November 14, 2022 – physical altercation with staff.  
• November 17, 2022 – physical altercation with staff.  
• November 25, 2022 – verbal and physical altercation with staff.  
• November 30, 2022 – verbal and physical altercation with staff.  
• December 3, 2022 - verbal and physical altercation with staff; the facility called emergency medical services to take him to the emergency room for evaluation, but R3 became so agitated that the EMTs had to call the police.  
• December 7, 2022 – verbally aggressive toward staff, throwing bodily fluids on staff.  
• December 9, 2022 – verbally and physically aggressive toward staff.  
• December 14, 2022 – physically aggressive toward staff and destruction of building equipment.   
   

CMS Ex. 111 at 11.  R3’s care plan directed staff to “monitor the well-being of others.”  Among the many interventions listed in the plan, staff were directed to provide his medications, as needed; attempt “redirection and anger management”; if redirection is unsuccessful, send him to the emergency room.  Id. 

The interventions did not prevent, or even curtail, R3’s aggressive and abusive behaviors: 

• December 18, 2022 – verbally aggressive and destruction of property.  
• December 27, 2022 – physically aggressive toward staff and another resident. 

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• December 30, 2022 – verbally aggressive toward multiple residents and physically aggressive toward staff.  
• January 9, 2023 – destruction of equipment.  
• February 14, 2023 – physically aggressive toward staff and another resident.  
• February 16, 2023 – destruction of equipment.  
• February 26 2023 – attention-seeking behavior; when he “didn’t get his way,” he dumped a mop bucket on the floor.  
• March 2, 2023 – destructive behavior toward staff property.  
• March 14, 2023 – inappropriate interaction with a female resident.  
• March 21, 2023 – verbal aggression toward male resident.  
• March 24, 2023 – destructive behavior toward medication cart laptop and desktop computer.   

CMS Ex. 111 at 24. 

Instead of offering interventions aimed at preventing future instances of abuse, R3’s care plan recounts the staff’s reactions to his aggressive behaviors (“Provide 1:1 supervision until EMS arrives”; “Residents immediately separated.  Assessed and sent to [hospital] for [evaluation related to] aggressive violent behaviors”).  Id.  Sending an aggressor to the emergency room after he has abused others does not establish that the facility has taken “reasonable steps to prevent abusive acts.” 

The May 8, 2023 incident.  Although the details are sketchy, R1 and R3 were involved in a physical altercation at the nurses’ station on May 8, 2023.  R1 sustained scratches to his face, nose, and ears.  R1 was sent to the hospital for evaluation and treatment.  R1 said that he was not injured.  R3, on the other hand, claimed that “[R1] hit me, so I beat him up.”  CMS Ex. 107 at 1, 7. 

Once again, the facility was well aware that two of its residents assaulted others.  Yet it instituted no meaningful interventions to protect its residents (including the abusers, who were, themselves, often injured). 

Petitioner’s response.  Instead of coming forward with evidence establishing that it disputes any of the facts that CMS has presented, Petitioner gratuitously asserts that CMS has not established its prima facie case.  P. Br. at 16, 22-23.  To evaluate whether CMS presented a prima facie case, the question is “whether the facts on which CMS relies [make] out a legally-sufficient case, even were CMS’s case not challenged by any evidence from the facility.”  Vandalia Park, DAB No. 1940 (2004); Good Samaritan Ctr., DAB No. 1844 (2002).  Here, where CMS has established that facility residents repeatedly assaulted others, sending some of them to the emergency room, Petitioner’s assertion that CMS has not established a prima facie case is not a serious defense.  

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Petitioner also points out that the facility developed care plans for their aggressive residents.  P. Br. at 16, 22-23.  But, no matter how purportedly detailed, a care plan that does not prevent the resident from assaulting other residents does not keep each resident free from abuse and does not satisfy the requirements of the statute and regulation.  Act § 1819(c)(1)(A)(ii); 42 C.F.R. § 483.12; see Sheridan Health Care Ctr., DAB No. 2178 at 37 (2008) (declaring it insufficient “merely” to have in place care plans that purportedly address the resident’s needs).  And if the plan goals are not met, the facility must revisit the care plan in order to respond meaningfully to the resident’s particular needs.  Sheridan, DAB No. 2178 at 38-39. 

3. 3. CMS is entitled to summary judgment because the undisputed evidence establishes that facility staff did not follow a resident’s care plan directing them to keep her bed in the lowest position, which meant that the resident’s environment was not free of accident hazards, and the facility was not in substantial compliance with 42 C.F.R. § 483.25(d).

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

The quality-of-care regulation characterizes quality of care as a “fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.  Based on the resident’s comprehensive assessment, the facility must ensure that the resident receives treatment and care in accordance with professional standards of practice, the resident’s comprehensive, person-centered care plan, and the resident’s choices.  42 C.F.R. § 483.25.  To this end, the quality-of-care regulation mandates, among other requirements, that each resident’s environment remains as free of accident hazards as possible and that each resident receives adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d); Logan Healthcare Leasing, LLC, DAB No. 3036 at 12-13 (2021); Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017).  The facility must therefore eliminate or reduce a known or foreseeable risk of accidents “to the greatest degree practicable.” Del Rosa Villa, DAB No. 2458 at 7 (2012) (emphasis added) (citing 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.”). 

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A facility “violates [what is now] section 483.25(d) if it fails, without ‘justifiable reason,’ to implement the accident precautions its own staff have determined are necessary to mitigate foreseeable accident risks.  Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 14 (2018) (citing Del Rosa Villa, DAB No. 2458 at 9, aff’d, Del Rosa Villa v. Sebelius, 546 F. App’x. 666 (9th Cir. 2013); NHC Healthcare Athens, DAB No. 2258 at 13 (2009); Burton Health Care Ctr., DAB No. 2051 at 9 (2006)).  Where, for example, a facility policy or a resident’s care plan requires staff to take specific measures in caring for a resident, those measures reflect the facility’s own determination of what it must do to attain or maintain the resident’s “highest practicable physical, mental, and psychosocial well-being” as required by the overarching quality-of-care requirement.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 6 (2017). 

Resident 73 (R73).  The resident identified as R73 during the March 28, 2023 survey was a 58-year-old woman, initially admitted to the facility on October 2, 2019.  CMS Ex. 53 at 1.  She suffered from a long list of impairments, including:  malnutrition, dysphagia, weakness, dementia, schizophrenia, early-onset Alzheimer’s disease, psychosis, and drug-induced dyskinesia.  She had fallen multiple times and scored 25 on a February 19, 2023 fall risk assessment; any score of ten or higher makes the resident a “high risk for falls.”  CMS Ex. 53 at 2, 34-35; see CMS Ex. 66. 

R73’s care plan identified her as at high risk for falls related to her medications and her uncontrolled, involuntary body movements.  She was unable to stand or ambulate unassisted and used a wheelchair.  She did not comply with safety guidelines.  Among other behaviors, she would not notify staff when she fell.  The care plan describes several incidents: 

• September 12, 2022 – R73 was found on the floor.  
• October 11, 2022 – R73 was leaning forward in her wheelchair and fell out of it.  
• October 20, 2022 – R73 was propelling herself in her wheelchair and fell forward to the floor.   

CMS Ex. 53 at 9.  Among other interventions, the care plan directed staff to lay down floor mats after the resident was put to bed and to set the bed in its lowest position.  Id.; CMS Ex. 45 at 15. 

Notwithstanding the care plan interventions, progress notes document additional falls: 

• January 7, 2023 – R3 fell onto the floor from her lowered bed and hit her head on the edge of the bed and floor. She was sent to the hospital.

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• February 14, 2023 – R73 was found on the floor and complained of hitting her head. She was sent to the hospital. 

CMS Ex. 53 at 51-52. 

At 8:50 a.m. on March 23, 2023, Surveyor Jill Noeltner observed R73 lying in bed.  Her left upper eye was injured.  Although her bed was on the floor, her roommate reported that the bed had been in a high position when R73 fell out of it and hit her head on the floor, about ten minutes earlier.  CMS Ex. 45 at 15.  After the fall, staff lowered the bed.  Id. 

Surveyor Noeltner interviewed the nurse aide assigned to care for R73.  The nurse aide explained that she had raised the bed when she changed the resident’s clothes and provided incontinence care.  She had intended to transfer the resident to her chair but was interrupted and told to shower another resident.  She left the room, forgetting to lower R73’s bed.  Id.  Shortly thereafter, two other staff members found R73 on the floor.  The resident’s body was on a floor mat, but her head was off the mat, on the floor.  Blood was on her forehead.  Her bed was in the high position.  Id.  Staff acknowledged that the bed should not have been in the high position.  CMS Ex. 45 at 15-16.  Again, Petitioner does not challenge any of the employees’ statements.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18; Omni Manor Nursing Home, DAB No. 1920 at 11. 

R73 was taken to the hospital, having sustained a displaced bilateral temporal mandibular joint (a jaw dislocation) and a laceration to her head above the left brow.  CMS Ex. 54 at 1, 16, 22; CMS Ex. 53 at 51. 

The deficiency here is straightforward.  The facility recognized that keeping R73’s bed in the highest position presented a known risk for accidents and injury.  To eliminate or reduce that risk, her care plan directed staff to put her bed in the lowest position.  But staff did not follow the care plan, which put the facility out of substantial compliance with section 483.25(d).  

Petitioner’s response.  Again, Petitioner does not present any evidence suggesting a dispute as to whether R73’s care plan called for her bed to be kept in the lowest position or that staff had left her alone in a bed that was set at the highest position.  Instead, it again unseriously suggests that CMS has not established a prima facie case and points out that the facility developed a detailed care plan to address R73’s risk of falls.  P. Br. at 17-18.  But staff did not follow the care plan’s instructions; the resident fell from the high bed and was injured; and that put the facility out of substantial compliance.  See Good Shepherd Home for the Aged, Inc., DAB No. 2858 at 14; Heritage Plaza Nursing Ctr., DAB No. 2829 at 6. 

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4. 4. CMS is entitled to summary judgment because the undisputed evidence establishes that the facility was not using the services of a registered nurse at least eight consecutive hours a day, seven days a week and was thus not in substantial compliance with 42 C.F.R. § 483.35(b).

Program requirements:  Act § 1819(b)(4)(C)(i); 42 C.F.R. § 483.35 (Tag F727).  The Act requires that a skilled nursing facility provide 24-hour licensed nursing services that are sufficient to meet the nursing needs of its residents and must use the services of a registered professional nurse at least eight consecutive hours a day, seven days a week.  Act 1819(b)(4)(C)(i).  Echoing the statutory language, the regulation requires that the facility use the services of a registered nurse for at least eight consecutive hours a day, seven days a week.7  42 C.F.R. § 483.35(b)(1).  If the facility has an average daily occupancy of more than 60 residents, the DON may not serve as a charge nurse.  42 C.F.R. § 483.35(b)(3). 

Reviewing the facility’s staffing schedule for March 2023, CMS asserts that no registered nurses were working on March 11 and 18, 2023.  CMS Ex. 41 at 1.  Petitioner counters that the facility’s DON, who is a registered nurse, was working on March 11.  P. Br. at 9.  Petitioner concedes that the facility was without the required registered nurse on March 18, 2023, which, by itself, puts the facility out of substantial compliance with section 483.35(b).8 

5. 5. CMS is entitled to a summary judgment finding that the facility was not in substantial compliance with 42 C.F.R. § 483.45(f)(2) because the undisputed evidence establishes that the facility did not administer a resident’s insulin, as ordered, and staff allowed a second resident to leave the facility without the medications he needed to treat his COPD.

Program Requirement:  42 C.F.R. § 483.45(f)(2) (Tag F760).  The facility must provide routine and emergency drugs to its residents and must ensure that its residents are free of any significant medication errors.  A single medication error can be significant.  

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Franklin Care Ctr., DAB No. 1900 (2003) (citing 56 Fed. Reg. 48,826, 48,853 (Sept. 26, 1991) (listing three factors relevant to whether a medication error is significant:  1) did the error involve a drug that could result in serious consequences for the resident; 2) was the resident compromised in such a way that she could not easily recover from the error; and 3) is there evidence that the error occurred more than once)).  

Facility policy:  timely administration of insulin.  The facility had in place a written policy for the timely administration of insulin.  The policy required that insulin be administered timely “in order to meet the needs of each resident and to prevent adverse effects on a resident’s condition.”  CMS Ex. 70.  The policy also required that all insulin be administered in accordance with the physician’s orders; it described the procedure for administering the medication, which included instructions to document, on the Medication Administration Record (MAR), the time and location of the insulin injection.  Id. 

Resident 91 (R91) was a 74-year-old woman, admitted to the facility on December 28, 2021, suffering from multiple diseases, including type 2 diabetes with hyperglycemia and type 2 diabetes with ketoacidosis.9  She had suffered a cerebral infarction.  She had dementia and acute kidney failure.  CMS Ex. 57 at 1, 2.  She required tube feeding.  CMS Ex. 57 at 12.  

R91’s care plan recognized that she was at risk for hypo/hyperglycemia related to her diabetes.  Among the interventions listed in her care plan was the requirement that her medications be administered as ordered.  CMS Ex. 57 at 18. 

CMS presents compelling evidence (the resident’s MAR) that, on March 20, 2023, the facility did not administer R91’s insulin and other medications (Furosemide, Metoprolol Tartrate, and Hydralazibe for blood pressure; Lidoderm patch for pain; Vitamin D3).  CMS Ex. 57 at 35-37.  The following day, staff reported that R91 didn’t “look like her normal self.”  She was “very lethargic.”  Her blood sugar was 436, which is dangerously high.  CMS Ex. 57 at 76.  Staff called her power-of-attorney, who directed them to send her to the hospital.  Id.  She arrived at the hospital critically ill, in an altered mental state.  She was unresponsive.  CMS Ex. 58 at 91.   Her blood sugar was 351, still very high.  CMS Ex. 58 at 93.  Her blood sodium level was extremely high at 181 (hypernatremia) and she was severely dehydrated.  She was treated with IV water and sliding scale insulin.  CMS Ex. 58 at 95, 97. 

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Surveyor Tammy Finkes interviewed the DON and the facility’s pharmacist.  The DON said that she expected staff to follow physician’s orders and to document on the MAR when medications – including insulin – are administered.  She would not say what the empty boxes on R91’s MAR meant because (she claimed) she would have to investigate the situation first (which she had not done, notwithstanding the resident’s serious illness and hospitalization).  CMS Ex. 45 at 39. 

The pharmacist told Surveyor Finkes that she expected all medications – including insulin – to be administered per the physician’s orders.  She also expected the nurse to sign off when the insulin is administered, although she suggested that the blank box on the MAR could have been a documentation error.  She conceded that failing to administer a dosage of insulin, as ordered, would be a significant medication error and could have caused R91’s hyperglycemia on the morning of March 21, 2023.  CMS Ex. 45 at 39. 

Petitioner’s response.  Again, Petitioner does not challenge these statements.  See Beatrice State Developmental Ctr., DAB No. 2311 at 17, 18; Omni Manor Nursing Home, DAB No. 1920 at 11.  In fact, Petitioner proffers no real defense to the allegation that staff failed to administer R91’s insulin as ordered.  Instead, it asserts, again without support, that CMS did not establish a prima facie case, and again simply lists the interventions called for in R91’s care plan.  P. Br. at 10, 20.  Petitioner concedes that the March 20 entry on R91’s MAR is blank but asserts that “the MAR documentation is not the sole indicator that medications were administered.”  P. Br. at 20.  However, Petitioner does not suggest nor present evidence of any other indication that the insulin was administered as ordered.  

Resident 84.  R91 was not the only resident who wasn’t administered insulin as ordered.  R84 was diagnosed with chronic atrial fibrillation, type 2 diabetes mellitus, weakness, cocaine abuse, opioid abuse, chronic viral hepatitis, vitamin D deficiency, and heart failure.  CMS Ex. 45 at 34.  He was prescribed insulin for his diabetes: 

• Lantus Solution 100 UNIT/ML (Insulin Glargine) – inject 30 units subcutaneously at bedtime for elevated blood sugar); and
• Humalog OG Solution 100 Unit/ML (Insulin Lispro) – inject 10 units subcutaneously three times a day for elevated blood sugar related to type 2 diabetes mellitus.   

CMS Ex. 45 at 34. 

R84 complained about getting his insulin late, and Surveyor Thacker checked his MAR, which showed the following:  

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• On January 5, 2023, R84 did not receive the ordered 10 units of Humalog OG Solution;
• On January 15, 2023, R84 did not receive his three doses of insulin;
• On February 5, 2023, one ordered dose of Humalog Solution was not given;
• On February 8, 9, and 10, 2023, two doses were missed; and
• On February 19, 2023, one dose was missed.   

Id. 

Petitioner did not respond to the allegations and evidence that R84 was not administered his insulin as ordered. 

Facility policy:  medication administration.  The facility policy required that all medications be “administered safely and appropriately.”  CMS Ex. 97 at 1.  Its discharge policy included instructions for reviewing medication instructions with the resident or representative.  CMS Ex. 95 at 1. 

Resident 2 (R2).  As noted above, on May 2, 2023, a hospital social worker reported that a seriously impaired resident (identified as R2) had been allowed to leave the facility with a relative and had been found abandoned.  Surveyor Thacker returned to the facility on May 5 to investigate.  CMS Ex. 118 at 4 (Thacker Decl. ¶ 9). 

R2 was a 64-year-old man, originally admitted to the facility on February 2, 2016.  He suffered from a long list of impairments, including acute and chronic respiratory failure with hypoxia, chronic obstructive pulmonary disease (COPD), asthma, metabolic encephalopathy, alcoholic cardiomyopathy, and numerous other disorders.  Both of his legs had been amputated between the hip and the knee, and he depended on a wheelchair.  CMS Ex. 93 at 1-3, 16. 

R2’s care plan recognized that he had difficulty breathing, related to his respiratory failure and COPD, and directed staff (among other interventions) to administer medications, as ordered.  CMS Ex. 93 at 10.  Those medications included:  Albuterol Sulfate – inhale every six hours, as needed; Fluticasone Furoate inhalation – inhale orally one time per day; Incruse Ellipta aerosol powder – one puff daily; Salmeterol Xinafoate aerosol – one puff every 12 hours.  CMS Ex. 93 at 25, 26, 31, 36, 42, 44, 45. 

On April 26, 2023, R2’s son signed him out of the facility on a leave of absence (LOA), with a return date of April 27, 2023.  However, at 6:13 p.m. that day, R2’s daughter, and 

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power-of-attorney, called the facility to report that the police department called her because R2 had been at the station, asking for money.  CMS Ex. 93 at 47. 

The following day, the resident’s son spoke to the facility social worker.  He explained that R2 wanted to leave the facility, so the son signed him out.  When they left, R2 went down the street in his power wheelchair.  The son thought that his father “had a plan,” so he left R2 on his own, hopped into his truck, and drove away.  He told the social worker that he would look for his father later that day.  Id. 

No one from the facility told R2’s daughter and power-of-attorney that R2 had left.  She told Surveyor Thacker that her brother had recently been released from prison and did not understand that their father’s health had declined in the years he had been away.  Had the facility asked her to approve her brother’s signing him out, she would have “told them absolutely not.”  And, remarkably, even after staff learned that R2 should not have been allowed to leave the facility, staff did not then inquire about his whereabouts nor attempt to track him down.  CMS Ex. 90 at 11; CMS Ex. 92; CMS Ex. 93 at 47; CMS Ex. 118 at 4 (Thacker Decl. ¶ 9).10 

R2’s daughter eventually found her father.  A friend reported seeing R2 at a gas station in a different town.  The daughter then called places, looking for him and eventually found him at a bus station, attempting to charge his wheelchair.  When she picked him up, he was having problems breathing, so she took him to the hospital where he was admitted with pneumonia.  CMS Ex. 90 at 8-9. 

R2 was admitted to the hospital on April 27, 2023, at about 5:00 p.m.  He told emergency room staff that his son had signed him out of the facility and left him in the parking lot.  CMS Ex. 94 at 1.  He was diagnosed with acute COPD exacerbation.  CMS Ex. 94 at 6.  At about 6:30 p.m. the next day, the hospital called the facility asking for information, including the resident’s medication list, which the facility supplied.  CMS Ex. 93 at 46. 

Petitioner’s response.  CMS maintains that the facility violated section 483.45(f)(2) because it allowed R2 to leave the facility on April 26, without his medications, knowing that he would not return until sometime the following day.  He was without his medications until after he was hospitalized, late in the day on April 27.  CMS Br. at 22.  Petitioner responds that many of R2’s medications had already been administered before he left on the April 26 and other (unidentified) medications were provided to him “LOA with meds.”  P. Br. at 22.  Contrary to the explicit instructions in my standing order, Petitioner does not cite any exhibit, much less provide a page number for whatever documents it purportedly relies on to support its assertions.  Standing Order at 3 

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(¶ 4c(1)).11  However, R2’s MAR indicates that, on April 26, staff administered his daily doses of Fluticasone Furoate (CMS Ex. 93 at 25), Incruse Ellipta (CMS Ex. 93 at 26), and one of the two ordered doses of Salmeterol Xinafoate aerosol (CMS Ex. 93 at 31).  But, until he was hospitalized, and the hospital received his medication list on the evening of April 28, he received none of these medications.  And, notwithstanding his obvious respiratory distress when his daughter found him on April 27, he did not have the prescribed Albuterol Aerosol, a “rescue inhaler” prescribed for episodes of dyspnea (shortness of breath).  See CMS Ex. 93 at 36. 

The record does not support Petitioner’s claim that staff provided R2 with his medications when he left the facility.  The MAR has a code for “LOA with meds”:  the numeral “1” and a separate code for “LOA” alone (does not include meds):  the numeral “3.”  CMS Ex. 93 at 38.  For Fluticasone Furoate (CMS Ex. 93 at 25), Incruse Ellipta (CMS Ex. 93 at 26), and Salmeterol Xinafoate aerosol (CMS Ex. 93 at 31), the entries are the same:  on April 26, no code is entered; on April 27, the record indicates “3.”  CMS Ex. 93 at 25.  For the Albuterol, nothing is entered.  CMS Ex. 93 at 36. 

And no other evidence supports Petitioner’s assertion that staff provided R2 with his medications.  The nursing notes say that “resident went LOA with son to return tomorrow 4.27.23.”  CMS Ex. 93 at 47.  Petitioner has presented no testimony from an employee or anyone else claiming to have sent R2’s medications with him when he left the facility.  Nor is there any evidence that staff reviewed with R2 or his son instructions for administering the medications.  See CMS Ex. 95 at 1. 

Thus, the undisputed evidence establishes that the facility repeatedly failed to administer insulin as ordered, and it sent one resident out of the facility without his medications.  These failures put the facility out of substantial compliance with section 483.45(f)(2).12

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6. 6. The penalty imposed is reasonable.

Determining whether the penalty is reasonable.  Whether the penalty amount is reasonable is a legal – not a factual – issue.  To overcome a summary judgment motion as to the reasonableness of the CMP, the facility must “proffer evidence sufficient to create a genuine dispute about the facts affecting our assessment of the relevant regulatory factors.”  W. Caldwell Care Ctr., DAB No. 3210 at 16 (2025) (citing Crawford Healthcare & Rehab., DAB No. 2738 at 19 (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)). 

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 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. 1683 at 8 (1999). 

I determine whether a penalty is reasonable, based on the per-day penalty, not the total accrued penalty.  W. Caldwell, DAB No. 3210 at 17; Copperas Cove LTC Partners, Inc., DAB No. 3049 at 43 (2021); Crawford Healthcare & Rehab., DAB No. 2738 at 20 (2016). 

Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, July 19, 2023.  CMS Ex. 9; 87 Fed. Reg. 15,100, 15,111 (Mar. 17, 2022).  Here, CMS imposed a per-day CMP of $1,655, which is in the low 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).  

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

History.  The facility has a poor compliance history.  In October 2021, the facility was not in substantial compliance with 42 C.F.R. § 483.12(a) (Tag F600 – freedom from abuse and neglect), a deficiency that was cited in this case.  CMS Ex. 11 at 2. 

The facility has also repeatedly been found out of substantial compliance with various sections of the quality-of-care regulation: 

• In November 2022, it was not in substantial compliance with 42 C.F.R. 483.25(e) (Tag F690 – quality-of-care:  incontinence care).  CMS Ex. 11 at 1.  
• In May 2022, it was not in substantial compliance with 42 C.F.R. § 483.25(b) (Tag F686 – quality-of-care:  pressure ulcers) and 42 C.F.R. § 483.25(k) (Tag F697 – quality-of-care:  pain management).  Those deficiencies caused actual harm (scope and severity level G).  CMS Ex. 11 at 2.  
• In March 2021, the facility was not in substantial compliance with 42 C.F.R. § 483.25 (Tag F684 – quality of care).  CMS Ex. 11 at 3.  
• In March 2021, the facility was not in substantial compliance with 42 C.F.R. § 483.25(g)(4)(5) (Tag F693 – quality of care: assisted nutrition and hydration).  CMS Ex. 11 at 3.   

In January 2022, the facility was not in substantial compliance with 42 C.F.R. § 483.80(g) (Tag F884 – infection control:  reporting requirements).  That deficiency was widespread (scope and severity level F).  CMS Ex. 11 at 2. 

CMS occasionally imposed some relatively low CMPs:  $20,000 in March 2021; $650 in January 2022, and $19,175 in May 2022.  See CMS Ex. 11.  These amounts were apparently not sufficient to induce the facility to maintain its corrective action. 

Thus, the facility’s significant history, particularly its repeated abuse and quality-of-care deficiencies, justify a CMP well above the minimum. 

Financial condition.  To establish that its financial condition justifies lowering the amount of a CMP, the facility must show that it lacks adequate assets to pay without having to go out of business or compromise resident health and safety.  W. Caldwell Care Ctr., DAB No. 3210 at 16 (citing Oceanside Nursing & Rehab. Ctr., DAB No. 2382 at 23 (2011)).  Without support, Petitioner asserts that the facility will suffer “significant financial hardship” if the full CMP is imposed.  P. Br. at 24.  Such unsupported assertions 

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cannot support a finding that Petitioner’s financial condition warrants a reduction in the CMP amount.  W. Caldwell, DAB No. 3210 at 17. 

Other factors.  This case involved multiple surveys and a significant number of deficiencies.  Except to assert that it was in substantial compliance, Petitioner has not come forward with argument or evidence to show that the CMP is unreasonable.  In fact, the facility’s repeated failure to protect its residents from physical abuse, for which the facility is culpable, by itself, justifies a significant penalty.  In addition, a vulnerable resident was injured after staff didn’t follow her care plan’s instructions to leave her bed at the lowest level.  Staff’s failing to administer necessary drugs as ordered subjected residents to potentially serious outcomes.  

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

Conclusion

From March 21 through May 12, 2023 the facility was not in substantial compliance with Medicare program requirements.  The relatively low CMP imposed – $1,655 per day – is reasonable.