The Loft Rehab of Rock Springs (f/k/a Prairie Creek Village), CR6795 (2025)

DECISION

Petitioner, The Loft Rehab of Rock Springs (formerly, Prairie Creek Village), is a long-term care facility located in Decatur, Illinois that participates in the Medicare program. 

This case involves multiple complaint investigation surveys of the facility completed by the Illinois Department of Public Health (state agency).  The first survey, completed on February 17, 2021, found deficiencies.  The state agency recommended, and the Centers for Medicare & Medicaid Services (CMS) authorized the imposition of a discretionary denial of payment for new admissions (DDPNA), effective March 12, 2021.  Petitioner did not appeal.  The state agency returned for additional complaint investigation and revisit surveys on February 26, March 11 and 23, April 19, and May 19 and 25, 2021.  While deficiencies were found during each of the surveys, the state agency did not recommend or impose any additional remedies. 

By notice dated August 2, 2021, CMS informed Petitioner that it determined, based on all the surveys conducted, that the facility was not in substantial compliance with Medicare program requirements and that it was imposing an additional remedy:  an $870 per-day civil money penalty (CMP), for 92 days of substantial noncompliance (February 23

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through May 25, 2021), which was later reduced to $72,036 due to financial hardship.  The previously imposed DDPNA that was effective March 12, 2021, was discontinued May 26, 2021. 

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

For the reasons explained below, I find that the facility was not in substantial compliance with multiple Medicare program requirements; the duration of the DDPNA, from March 12, 2021, through May 25, 2021, is appropriate; and the $870 per-day CMP, from February 23, 2021, through May 25, 2021, is reasonable. 

I.  Background

The Social Security Act (Act) sets forth requirements for skilled nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services (Secretary) to promulgate regulations implementing those statutory provisions.  Act § 1819, 42 U.S.C. § 1395i–3.  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 or safety than the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to survey skilled nursing facilities to determine whether they are in substantial compliance.  Act § 1864(a), 42 U.S.C. § 1395aa(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with not more than 15 months elapsing between surveys, and must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A), 42 U.S.C. § 1395i–3(g)(2)(A); 42 C.F.R. §§ 488.20(a), 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4), 42 U.S.C. § 1395i–3(g)(4); 42 C.F.R. § 488.308(f). 

A.  Surveys

February 17, 2021 survey.  Responding to a complaint, surveyors from the state agency inspected Petitioner’s facility and determined the facility was not in substantial compliance with program requirements.  CMS Ex. 1 at 1.  A copy of the Statement of Deficiencies (SOD) is not included in the record. 

On February 25, 2021, the state agency issued a notice (Initial Notice) explaining that, because of the survey findings of substantial noncompliance, it recommended, and CMS “concur[red] and has authorized[,]” it to impose a DDPNA, effective March 12, 2021.  Id. at 2.  In a section captioned “Formal Appeal Rights,” the notice advised Petitioner that

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it could request a hearing before an administrative law judge, and explained the procedures for doing so, referring Petitioner to 42 C.F.R. § 498.40 et seq.  Id. at 3.  The letter emphasized that “[a] request for hearing must be filed no later than 60 days from the date of receipt of this notice.”  Id.  Petitioner did not appeal. 

Subsequent complaint investigations and follow-up surveys identified additional deficiencies.  CMS Ex. 1.  “Although no additional remedies [were] recommended or imposed as a result of the revisit[s], all remedies proposed, recommended or imposed in the Initial Notice . . . continue[d] in effect.”  See, e.g., CMS Ex. 1 at 5, 7, 11, 20, 26.  The subsequent notices did not include appeal rights. 

February 26, 2021 survey.  The state agency returned to the facility on February 26, 2021, to investigate complaint allegations.  Id. at 5.  The following deficiencies were identified: 

• 42 C.F.R. § 483.10(e)(3) (Tag F558 – resident rights: respect and dignity – reasonable accommodations), cited at scope and severity level D (isolated instance of substantial noncompliance that causes no actual harm with the potential for more than minimal harm);
• 42 C.F.R. § 483.10(j)(1)-(4) (Tag F585 – resident rights: grievances), cited at scope and severity level D;
• 42 C.F.R. § 483.21(b)(1) (Tag F656 – comprehensive person-centered care planning: comprehensive care plan developed and implemented), cited at scope and severity level D;
• 42 C.F.R. § 483.24(a)(2) (Tag F677 – quality of life: activities of daily living (ADL) care), cited at scope and severity level D;
• 42 C.F.R. § 483.25(e)(1)-(3) (Tag F690 – quality of care: incontinence), cited at scope and severity level D;
• 42 C.F.R. § 483.25(k) (Tag F697 – quality of care: pain management), cited at scope and severity level G (isolated instance of substantial noncompliance that causes actual harm but does not pose immediate jeopardy to resident health and safety);
• 42 C.F.R. § 483.45(f)(2) (Tag F760 – pharmacy services: residents are free from significant medication errors), cited at scope and severity level G; and

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• 42 C.F.R. § 483.60(d)(1), (2) (Tag F804 – food and nutrition services: food and drink), cited at scope and severity level C (widespread substantial compliance – no actual harm with the potential for no more than minimal harm). 

CMS Ex. 3. 

March 11, 2021 survey.  A revisit survey was conducted on March 11, 2021, to investigate complaint allegations.  CMS Ex. 1 at 7.  The following additional deficiencies were identified: 

• 42 C.F.R. § 483.12(a)(1) (Tag F600 – freedom from abuse, neglect and exploitation:  facility must not use verbal, mental, sexual or physical abuse), cited at scope and severity level D;
• 42 C.F.R. § 483.12(b)(1)-(3) (Tag F607 – freedom from abuse, neglect and exploitation:  develop and implement written policies and procedures that prohibit and prevent abuse, investigate allegations and include training), cited at scope and severity level D;
• 42 C.F.R. § 483.12(c)(1), (4) (Tag F609 – freedom from abuse, neglect and exploitation:  reporting of alleged violations), cited at scope and severity level D;
• 42 C.F.R. § 483.12(c)(2)-(4) (Tag F610 – freedom from abuse, neglect and exploitation:  investigating, preventing and correcting allegations of abuse), cited at scope and severity level D;
• 42 C.F.R. § 483.25 (Tag F684 – quality of care), cited at scope and severity level D;
• 42 C.F.R. § 483.25(b)(2)(i), (ii) (Tag F687 – quality of care:  foot care), cited at scope and severity level D;
• 42 C.F.R. § 483.25(d)(1), (2) (Tag F689 – quality of care:  free of accidents and hazards), cited at scope and severity level D;
• 42 C.F.R. § 483.25(g)(1)-(3) (Tag F692 – quality of care:  nutrition and hydration status maintenance), cited at scope and severity level D;
• 42 C.F.R. § 483.45(a), (b)(1)-(3) (Tag F755 – pharmacy services), cited at scope and severity level E (pattern of substantial noncompliance that causes no actual harm with the potential for more than minimal harm); and

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• 42 C.F.R. § 483.45(f)(2) (Tag F760 – pharmacy services:  residents are free from significant medication errors), cited at scope and severity level E. 

CMS Ex. 12. 

On March 18, 2021, the state agency returned to the facility to conduct a follow-up survey.  It was determined that all the deficiencies identified in the February 17, 2021 survey had been corrected; however, verification of corrections of other outstanding deficiencies had not been completed.  CMS Ex. 1 at 9.  

March 23, 2021 survey.  A revisit survey was conducted on March 23, 2021, to investigate complaint allegations and the following additional deficiency was identified:  

• 42 C.F.R. § 483.25(d)(1), (2) (Tag F689 – quality of care:  free of accidents and hazards), cited at scope and severity level D.

Id. at 11; CMS Ex. 30. 

April 19, 2021 survey.  The state agency returned on April 19, 2021, to investigate complaint allegations.  CMS Ex. 1 at 20.  As a result, the following additional deficiency was identified:  

• 42 C.F.R. § 483.24(a)(2) (Tag F677 – quality of life:  ADL care), cited at scope and severity level D.  

CMS Ex. 34. 

May 19, 2021 survey.  On May 19, 2021, the state agency returned to the facility to conduct revisit surveys and to investigate complaint allegations.  CMS Ex. 1 at 22-24.  It was determined that the facility had not achieved and maintained substantial compliance with all certification requirements.  Id. at 22.  Additional deficiencies were also identified:  

• 42 C.F.R. § 483.24(a)(2) (Tag F677 – quality of life:  ADL care), cited at scope and severity level D; and
• 42 C.F.R. § 483.60(e)(1), (2) (Tag F808 – food and nutrition services:  therapeutic diet), cited at scope and severity level D. 

Id.; CMS Ex. 42.  The notice explained that if the facility did not achieve and maintain substantial compliance with certification requirements by August 17, 2021, it would recommend termination of the facility’s participation in the Medicare and Medicaid programs.  CMS Ex. 1 at 22. 

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May 25, 2021 survey.  Finally, the state agency conducted another complaint investigation survey on May 25, 2021, and the following deficiency was identified:  

• 42 C.F.R. § 483.60(c) (Tag F803 – food and nutrition services:  menus and nutritional adequacy), cited at scope and severity level D.  

CMS Ex. 1 at 26; CMS Ex. 49. 

The state agency issued a notice on June 7, 2021, stating that it was recommending that the previously recommended termination be rescinded.  CMS Ex. 1 at 28.  In addition, the notice advised Petitioner that the DDPNA that was effective on March 12, 2021, was discontinued effective May 28, 2021.  Id. 

On August 2, 2021, CMS issued its Survey Findings and Imposition/Disposition of Remedies.  CMS Ex. 2.  CMS’s notice advised that, due to survey findings of substantial noncompliance, it was imposing a CMP in addition to the previously imposed DDPNA.  Id. at 1.  CMS imposed a CMP of $870 per day for 94 days beginning February 23, 2021, and continuing through May 27, 2021, for a total of $81,780.  Id. at 2. 

By notice dated December 14, 2021, the compliance date was changed from May 28, 2021, to May 26, 2021.  Id. at 8.  As a result, the DDPNA was effective from March 12, 2021, through May 25, 2021, and the per-day CMP was imposed for 92 days from February 23, 2021, through May 25, 2021, for a total of $80,040.  Id. at 9.  The CMP amount was further reduced by 10% because of Petitioner’s allegations of financial hardship.  The final amount of the CMP imposed is $72,036.  Id.  

Petitioner filed a request for hearing on October 1, 2021, challenging the deficiencies cited during all the surveys, as well as a long list of additional determinations, findings, and conclusions (some of which are not reviewable).  This matter was originally assigned to Administrative Law Judge (ALJ) Leslie C. Rogall and reassigned to the undersigned ALJ on March 25, 2025.  

B.  The Parties’ Submissions and Decision on the Written Record. 

CMS filed a prehearing brief and motion for summary judgment (CMS Br.) with 58 exhibits (CMS Exs. 1-58), including the written declarations of five proposed witnesses.  Petitioner filed its brief and response to CMS’s motion for summary judgment (P. Br.) with 11 exhibits (P. Exs. 1-11).  Petitioner also filed objections to CMS’s proposed exhibits (P. Objections).  CMS filed its reply (CMS Reply) on February 15, 2022. 

On February 7, 2025, the parties submitted a Joint Stipulation Regarding a Decision on the Written Record (Joint Stipulation).  Pertinent here, the parties stipulated that CMS proffered the testimony of five witnesses.  Joint Stipulation ¶ 3.  Petitioner did not proffer

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any witness testimony nor request to cross-examine any of CMS’s proposed witnesses.  Id.  The parties conferred and agreed to have the case decided on the written record.  Id. ¶ 4.  Inasmuch as the parties have agreed, and there is otherwise no need to have an in-person hearing absent a request to cross-examine witnesses, I will decide this case on the written record.  Civ. Remedies Div. P. § 19(d); Standing Prehearing Order of Administrative Law Judge Leslie C. Rogall for Cases Involving Compliance with Health, Safety, and Quality Standards (Standing Order) ¶¶ 8f, 13.  CMS’s motion for summary judgment is denied as moot. 

C.  Petitioner’s Objections to CMS’s Proposed Exhibits and Admissions into the Record. 

Petitioner objects to my admitting the following exhibits proffered by CMS: 

• CMS Ex. 3 – February 26, 2021 Statement of Deficiencies and Plan of Correction;
• CMS Ex. 7 – Staff interviews with V2, V6, and V14;
• CMS Ex. 9 – Surveyor M.S.’s notes from February 26, 2021 survey;
• CMS Ex. 10 – Declaration and resume of Surveyor C.D.;
• CMS Ex. 11 – Surveyor C.D.’s notes from February 26, 2021 survey;
• CMS Ex. 12 – March 11, 2021 Statement of Deficiencies and Plan of Correction;
• CMS Ex. 27 – Surveyor A.B.’s notes from March 11, 2021 survey;
• CMS Ex. 29 – Surveyor L.F.’s notes from March 11, 2021 survey;
• CMS Ex. 30 – March 23, 2021 Statement of Deficiencies and Plan of Correction;
• CMS Ex. 33 – Surveyor L.F.’s notes from March 23, 2021 survey;
• CMS Ex. 34 – April 19, 2021 Statement of Deficiencies and Plan of Correction;
• CMS Ex. 41 – Surveyor K.G.’s notes from April 19, 2021 survey;
• CMS Ex. 42 – May 19, 2021 Statement of Deficiencies and Plan of Correction;
• CMS Ex. 48 – Surveyor M.S.’s notes from May 19, 2021;
• CMS Ex. 49 – May 25, 2021 Statement of Deficiencies and Plan of Correction; and
• CMS Ex. 55 – Surveyor L.F.’s notes from May 25, 2021 survey.  

Petitioner objects to each of the exhibits as including hearsay.  P. Objections. 

I am not bound by the Federal Rules of Evidence, and it is well-settled that hearsay may be admitted in administrative proceedings such as this one “consistent with procedural ‘integrity and fundamental fairness.”’  42 C.F.R. § 498.61; Omni Manor Nursing Home, DAB No. 1920 (2004) (quoting Richardson v. Perales, 402 U.S. 389, 410 (1971)); Britthaven, Inc., DAB No. 2018 at 3 (2006) (“In administrative proceedings generally, and in Chapter 498 proceedings expressly, hearsay is admissible and can be probative on the issue of the truth of matter asserted, where sufficient indicia of reliability are present.”). 

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Furthermore, contemporaneous survey reports and notes (CMS Exs. 7, 9, 10, 11, 27, 29, 33, 41, 48, and 55) would be admissible even under the Federal Rules of Evidence.  An opposing party’s statement, which would include statements facility staff made to surveyors, is admissible under Fed. R. Evid. 801(d)(2) as an opposing party’s statement.  Florence Park Care Ctr., DAB No. 1931 (2004).  The other notes and worksheets would be admissible under Fed. R. Evid. 803(1), under which a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is admissible as a “present sense impression” exception to the hearsay rule.  Accordingly, Petitioner’s hearsay objections are overruled. 

Petitioner further argues that the statements of deficiencies (CMS Exs. 3, 12, 30, 34, 42 and 49) should be excluded because they were created with this litigation in mind.  I reject Petitioner’s unsupported claim.  A statement of deficiencies must be generated whenever surveyors find that a facility is not in substantial compliance with any program requirement.  The purpose of the document is to list deficiencies cited by the surveying state agency as requiring correction.  Instructions for Completion of the Statement of Deficiencies and Plan of Correction (CMS-2567) (Rev. Date March 18, 2022). 

Moreover, I am required to “inquire fully into all of the matters at issue” and to admit any documents that are relevant and material.  42 C.F.R. § 498.60(b)(1).  Statements of deficiencies set out the survey findings on which CMS based its enforcement actions that are the subject of appeal and, for that reason, are “unquestionably relevant and material evidence.”  Avalon Place Trinity, DAB No. 2819 at 38 (2017). 

Therefore, Petitioner’s objections to CMS’s proposed exhibits are overruled, and CMS Exs. 1-58 are admitted.  CMS does not object to any of Petitioner’s proposed exhibits; therefore, I admit P. Exs. 1-11 into the record. 

The record is now closed and ready for a decision on the written record. 

II.  Issues

As a threshold matter, I set forth the limits of my jurisdiction, which I explain more fully below.  I find that the facility was not in substantial compliance with the Medicare program requirements that Petitioner did not appeal.  Because Petitioner did not appeal the deficiency findings identified in the February 17 survey as well as 42 C.F.R. §§ 483.21(b)(1) and 483.24(a)(2) (Tags F656 and F677) from the February 26 survey, and 42 C.F.R. §§ 483.25 and 483.25(b)(2)(i)(ii) (Tags F684 and F687) from the March 11 survey, those findings are now final and binding.  42 C.F.R. § 498.20(b). 

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The issues before me are:  

• Was the facility in substantial compliance with the Medicare program requirements that were cited during the February 26, March 11 and 23, April 19, and May 19 and 25 surveys;
• Is the DDPNA from March 12, through May 25, 2021, appropriate; and
• Is the $870 per-day CMP from February 23, through May 25, 2021, reasonable? 

III. Discussion

A.  Petitioner is not entitled to a hearing challenging the February 17 survey findings of noncompliance because it did not timely appeal the initial determination. 

Following the February 17 complaint investigation survey, the state agency issued an Initial Notice dated February 25, 2021, imposing a DDPNA, effective March 12, 2021, with CMS’s concurrence and authorization.  CMS Ex. 1 at 2.  CMS contends that the February 17 survey findings are not subject to review because no remedies were imposed.  CMS Br. at 3.  This argument is incorrect.  A DDPNA is an enforcement action specified at 42 C.F.R. § 488.406(a)(2).  Therefore, the state agency’s Initial Notice, which informed the Petitioner of the findings that led to the enforcement action, constitutes an initial determination subject to appeal under 42 C.F.R. §§ 488.402(f)(1), 488.406(a)(2), and 498.3(b)(13).  In fact, the Initial Notice used standard language advising the facility of its appeal rights and deadline to file a request for hearing.  CMS Ex. 1 at 3. 

Nevertheless, CMS is correct that I do not have authority to review the February 17 survey findings.  Petitioner did not timely appeal the Initial Notice, nor offer good cause to extend the filing deadline. 

Section 1866(h) of the Act authorizes administrative review of determinations that a provider fails to comply substantially with Medicare program requirements “to the same extent as is provided in section 205(b) of the [Act].”  Under section 205(b), the Secretary must provide reasonable notice and opportunity for a hearing “upon request by [the affected party] who makes a showing in writing that his or her rights may be prejudiced” by the Secretary’s decision.  The hearing request “must be filed within sixty days” after receipt of CMS’s determination.  Act § 205(b); 42 U.S.C. § 405(b)(1) (Emphasis added).  The 60-day time limit is thus a statutory requirement.  Rutland Nursing Home, DAB No. 2582 at 2 (2014).  Similarly, the regulations mandate that the affected party “file the request in writing within 60 days from receipt of the notice . . . unless that period is extended . . . .”  42 C.F.R. § 498.40(a)(2).  The party may file with the ALJ a written request for extension of time, stating the reasons why the request was not timely filed.  For good cause shown, the ALJ may extend the time for filing.  42 C.F.R. § 498.40(c). 

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In this case, the state agency sent the Initial Notice by electronic transmission on February 25, 2021.  Id. at 1.  Petitioner does not dispute receipt of the notice on that date.  Accordingly, the deadline to appeal the February 17 survey findings was April 26, 2021.  Petitioner did not file anything until October 1, 2021, more than five months after the deadline, and did not request an extension nor proffer good cause for the delay.  Because Petitioner failed to timely appeal the February 17 survey findings, those determinations are final and binding.  42 C.F.R. § 498.20(b). 

B.  CMS’s unchallenged determinations that the facility was not in substantial compliance with 42 C.F.R. §§ 483.21(b)(1) and 483.24(a)(2) (Tags F656 and F677), and 42 C.F.R. §§ 483.25 and 483.25(b)(2)(i)(ii) (Tags F684 and F687) are final and binding.  Based on the un-appealed deficiencies, CMS may impose enforcement remedies. 

Petitioner did timely appeal CMS’s August 2, 2021 notice, which informed the facility that the DDPNA imposed effective March 12, 2021, was discontinued as of May 26, 2021.  CMS Ex. 2 at 2, 8.  CMS’s notice also stated that, based on findings of substantial noncompliance from surveys conducted on February 17 and 26, March 23, April 19, and May 19 and 25, it was imposing a per-day CMP of $870 for 92 days, from February 23, 2021, through May 25, 2021, for a total of $80,040, which was further reduced to $72,036.  Id. at 1-2, 9.  

Petitioner’s timely appeal preserved its right to contest CMS’s determination as to the duration of the DDPNA.  See Taos Living Ctr., DAB No. 2293 at 12-16 (2009).  Petitioner is also entitled to a hearing to contest the findings of substantial noncompliance from the February 26, March 11 and 23, April 19, and May 19 and 25 surveys that led to the imposition of a CMP.  Although the state agency’s notices for those surveys identified additional deficiencies, no remedies were imposed.  See, e.g., CMS Ex. 1 at 5, 7, 11, 20, and 26.  As such, the deficiencies cited were not appealable.  San Fernando Post Acute Hosp., DAB No. 2492 at 7-8 (2012) (holding that a facility has no right to a hearing unless CMS imposes one of the specified remedies in the regulations). Petitioner’s appeal rights were triggered only after the CMP was imposed by CMS. 

However, while Petitioner’s hearing request was sufficient to preserve its hearing rights, it was required to identify the specific matters being appealed.  42 C.F.R. § 498.40(b); Carlton at the Lake, DAB No. 1829 (2002).  To clarify the issues and develop the record, the standing prehearing order in this case required the parties to submit prehearing briefs outlining all arguments they intend to present.  Standing Order ¶ 8 (“A prehearing brief must contain any arguments that a party intends to make.”). 

In its prehearing brief, Petitioner presented arguments and evidence to rebut most, but not all the deficiencies.  Specifically, Petitioner did not challenge the determinations from the February 26 survey that the facility failed to comply with 42 C.F.R. §§ 483.21(b)(1) and

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483.24(a)(2) (Tags F656 and F677), nor the March 11 survey findings under §§ 483.25 and 483.25(b)(2)(i)(ii) (Tags F684 and F687).  P. Br. at 7-15.  These unchallenged findings are therefore final and binding: 

• The facility did not care plan for R1’s1^, 2  pain, indwelling catheter, and ulcerative colitis, or R2’s pain, indwelling urinary catheter, colostomy and ADLs.  The facility was therefore out of substantial compliance with 42 C.F.R. § 483.21(b)(1).
• Facility staff did not bathe R1 from February 5 through 11, 2021, in violation of its bathing policy.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.24(a)(2), which requires that residents who are unable to carry out ADLs receive the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.  
• Facility staff did not follow physician’s orders, which required cleansing and applying dressings on R1’s3  great toe.  Failure to follow physician’s orders put the facility out of substantial compliance with 42 C.F.R. § 483.25, which requires residents to receive care and treatment in accordance with professional standards of care.
• The facility did not provide foot care for R1 or R2, allowing both residents’ toenails to overgrow.  In addition, the facility failed to provide R1 with podiatry appointments, in violation of its foot care policy.  The facility was therefore not in substantial compliance with 42 C.F.R. § 483.25(b)(2). 

The facility was thus not in substantial compliance with Medicare program requirements.  As such, CMS was authorized to impose enforcement remedies, including the DDPNA, which became effective March 12, 2021.  42 C.F.R. § 488.402(b).  CMS was also authorized to impose a per-day CMP of at least $112.  Act § 1819(h), 42 U.S.C. § 1395i-3(h); 42 C.F.R. § 488.402; 85 Fed. Reg. 2,869, 2,879 (Jan. 17, 2020).4 

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C.  The facility did not follow its own policies nor R1’s care plan for pain, which put it out of compliance with 42 C.F.R. § 483.25(k). 

Program requirement:  42 C.F.R. § 483.25(k) (Tag F697).  “Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents.”  42 C.F.R. § 483.25.  Under the statute and the quality-of-care regulation, each resident must receive, and the facility provides, the necessary care and services to allow a resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b), 42 U.S.C. § 1395i-3(b); 42 C.F.R. § 483.25.  A facility must, among other things, “ensure that pain management is provided to residents that require such services, consistent with the professional standards or practice, the comprehensive-person-centered care plan, and the residents’ goals and preferences.”  42 C.F.R. § 483.25(k). 

Facility policy.  The facility had in place a “Medication Administration” policy.  CMS Ex. 565  at 10.  The policy required medications to be administered as prescribed and in accordance with good nursing principles and practices and only by persons legally authorized to do so.  Id.  Medications are to be administered in accordance with written orders of the prescriber and within 60 minutes of scheduled time.  Id. at 13.  The individual who administers the medication is required to record the administration on the resident’s medication administration record “directly after the medication is given.”  Id. at 15.  If a regularly scheduled medication is withheld, refused, not available, or given at a time other than the scheduled time, the space provided on the front of the medication administration record (MAR) for that dosage administration is initialed and circled and an explanatory note is entered on the reverse side.  Id.  If “consecutive doses” of a vital medication are withheld, refused or not available, the physician is notified and “nursing documents the notification and physician response.”  Id.  

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R1.  R16  was admitted to the facility on February 3, 2021.  CMS Ex. 5 at 1.  Her diagnoses included, inter alia, unspecified injury of left ankle, unspecified abdominal pain, localized edema, need for assistance with personal care, muscle weakness, chest pain, anxiety disorder, migraine not intractable, chronic pain syndrome and ulcerative colitis.  Id. at 2.  Upon admission, R1 was prescribed oxycodone 30 mg, twice a day, and 5 mg, three times a day, as needed, for pain.  CMS Ex. 5 at 23-24, 34.  Special instructions state that oxycodone 30 mg should be given twice a day for one week, then decreased to 15 mg for 14 days and then discontinued.  Id. at 24.  Consistent with these instructions, from February 12 through 26, 2021, R1 was prescribed oxycodone 15 mg, twice a day, at 8:00 a.m. and 8:00 p.m.  Id. at 25.  In addition, R1 was prescribed clonazepam .5 mg (indicated for anxiety) at bedtime beginning February 4, 2021.  Id. at 24, 54. 

Petitioner proffers that R1’s pain management program consisted of a plan designed to reduce her dependence on opioid use.  P. Br. at 7.  Petitioner notes that R1 did not complain of pain daily and that when R1 did complain of pain, it was promptly treated.  Id.  Petitioner further states that it processed R1’s opioid orders in accordance with facility guidelines and that it must rely on a third-party pharmacy to obtain these medications.  Id.  Petitioner contends that when doses were missed, explanatory notes were included in R1’s records.  Id. at 8.  Finally, Petitioner states that its documentation shows the administration of doses incorrectly identified as missed in the SOD.  Id. 

Petitioner’s contentions that R1’s care plan was designed to reduce opioid use is supported by the record.  Progress notes state oxycodone at 30 mg was to continue for 1 week, then decreased to 15 mg, and then eventually discontinued.  P. Ex. 2 at 20.  The physician’s orders are in accord with this plan.  However, the facility did not follow R1’s medication orders as prescribed and failing to follow a physician order puts the facility out of substantial compliance with section 483.25.  Cedar Lake Nursing Home, DAB No. 2390 at 3 (2011) (holding that a facility’s failure to comply with physician orders, a resident’s care plan, or its own policies can constitute a deficiency under section 483.25). 

The record shows several missed doses of oxycodone.  On February 3 and 4, and 7 and 8, R1’s doses of oxycodone 30 mg were not administered due to drug unavailability.  CMS Ex. 5 at 73-74.  I acknowledge Petitioner’s statements that it relies on a third-party pharmacy for controlled substances.  However, the facility’s policy required the physician to be notified of consecutive missed doses, as well as documentation of the notification and the physician’s response.  CMS Ex. 56 at 15.  There is no documentation that the physician was notified after three consecutive missed doses due to unavailability or, if the physician was notified, the physician’s response.  CMS Ex. 5 at 73-74; see also id. at 54-55 (MAR showing R1 did not receive any clonazepam, indicated for anxiety,

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from February 4-9, and 11-22, 2021, for reasons ranging from the item being unavailable or needing a new prescription).  

The Board has held that a facility’s policies “may reflect [its] own judgment about how best to achieve compliance” with participation requirements.  Heritage House of Marshall Health & Rehab., DAB No. 3035 at 10-11 (2021) (quoting Bivins Mem’l Nursing Home, DAB No. 2771 at 9 (2017)).  Thus, failing to comply with its own policies supports the finding that the facility was not acting within the standard of care and was not in substantial compliance with sections 483.25 and 483.25(k).  Id.; Emery Cnty. Care & Rehab., DAB No. 3006 at 11 (2020) (explaining that CMS may “reasonably rely on the facility’s protocols and treatment policies as evidencing the facility’s own judgment on the care and services that are necessary at a minimum to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being”); Hanover Hill Health Care Ctr., DAB No. 2507 at 6 (2013) (observing that “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”). 

Considering R1’s history of pain, and plan to wean her off opioid medication, notifying the physician of missed doses of medications prescribed to treat R1’s pain, as was required by the facility’s own policy, was essential to R1’s pain management and to effectively wean her off opioids.  V14, R1’s pain specialist physician, explains that if R1 was not receiving oxycodone as ordered or goes without oxycodone for a day or more, she would experience withdrawal symptoms, which included nausea, vomiting, increased pain and anxiety.  CMS Ex. 7 at 5.  V14 further explained that missing doses of clonazepam also produces withdrawal and increased anxiety, which contributed to an increase in R1’s pain.  Id.  Petitioner does not dispute any of these statements.  In fact, the record shows that following the consecutive missed doses of oxycodone and clonazepam, R1 was discharged to the emergency room for abdominal pain for which she was given fentanyl as well as ondansetron (Zofran).  CMS Ex. 5 at 83-84.  Remarkably, following her return to the facility, Petitioner’s Controlled Drug Receipt/Record/Disposition Form again shows missed doses on February 10 and 11 (missing morning doses).  P. Ex. 2 at 39. 

In summary, Petitioner did not effectively manage R1’s pain.  The facility’s failure to follow the prescribed plan to respond to R1’s chronic pain and its failure to notify the physician when the prescribed pain medication was unavailable, as required by its own policy, puts it out of substantial compliance with section 483.25(k).  Petitioner’s actions had the potential to cause more than minimal harm and, in fact caused actual harm, because R1’s pain was not being managed in accordance with her physician’s orders, which required emergency treatment.  Accordingly, Petitioner did not comply substantially with 42 C.F.R. § 483.25(k).  

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D.  The facility was not in substantial compliance with 42 C.F.R. § 483.25(d)(1), (2) (F689) because Petitioner did not follow resident care plans or take reasonable steps to provide adequate supervision and assistance to residents to prevent foreseeable falls, placing residents at risk of suffering more than minimal harm. 

Program requirement:  42 C.F.R. § 483.25(d)(1), (2) (Tag F689).  The quality-of-care regulation requires facilities to, in relation to accidents, ensure: 

(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. 

42 C.F.R. § 483.25(d). 

Section 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.”  Me. Veterans’ Home - Scarborough, DAB No. 1975 at 10 (2005).  The provisions of § 483.25(d) “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 & Hum. Servs., 604 F.3d 445 (7th Cir. 2010).  Further, § 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). 

Facility Policy.  The facility had in place a policy titled, “Fall Reduction Program.”  CMS Ex. 56 at 34.  The objective of the policy is to assure the safety of all residents in the facility, when possible.  Id.  The fall reduction program includes measures which determine the individual needs of each resident by assessing the risk of falls.  Id.  The program also required immediate changes to interventions that are unsuccessful and care planning that incorporates identification of risks, addressing each fall, intervention changes after each fall (as appropriate), and preventative measures.  Id. 

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The policy further states that Fall Risk Assessments “will be performed at least quarterly and with each significant change in mental or functional condition and after any fall incident, unless already assessed as at risk for falls (score of 10 or more).”  Id.; see also id. at 35 (a post fall assessment will be completed after each fall to determine cause and prevent further falls).  Standard fall precautions for all residents include observation approximately every two hours to ensure the resident is safely positioned in the bed or a chair, and providing care as assigned in accordance with the plan of care.  Id. at 35. 

R12.  R127  was admitted to the facility on February 6, 2019.  CMS Ex. 18 at 1.  R12’s diagnoses included, among others, dementia in other diseases classified elsewhere with behavioral disturbance, essential hypertension, muscle weakness, need for assistance with personal care and altered mental status.  Id. at 2.  On admission, R12 was assessed at risk for falls due to being new to the facility, dementia, abnormal gait and mobility, agitation and altered mental state.  Id. at 59.  Also, it was noted that R12 had a “tendency to sleep with legs over side of [the] bed.”  Id. at 59-60.  Interventions included providing gripper socks while in bed and giving verbal reminders not to ambulate or transfer without assistance.  Id. at 60.  R12’s care plan was updated in July 2020 to toilet as ordered and again in October 2020 to add a sign to R12’s walker as a reminder to wait for help.  Id.  On March 10, 2021, R12’s care plan was updated to offer toileting after every meal and every two hours as applicable (start dates of January 29, 2021 and February 2, 2021), and monitoring R12 while in bed sleeping and repositioning as needed (January 15, 2021 start date).  Id. at 59-60. 

On August 3, 2019, R12’s care plan stated she required a bed sensor alarm when in bed.  Id. at 28.  A bed sensor pad alarm was ordered.  Id.  Other interventions included monitoring closely while in bed and making sure R12 is in proper positioning and proper body alignment.  Id.  On February 15, 2020, evaluation notes stated that R12 attempted to remove the bed sensor pad alarm and R12 was placed on 15-minute checks.  Id.  R12 continued to get up by herself and 15-minute checks were noted as not effective.  Id.  R12’s bed sensor alarm pad was also replaced.  Id.  On March 9, 2021, R12’s care plan was reviewed and revised to R12 having no adverse reactions to the bed sensor pad alarm.  Id. 

On January 15, 2021, R12 fell out of bed in the morning.  Id. at 17.  R12’s history of confusion, dementia and polyarthritis are noted.  Id.  R12 appeared sore but no acute fracture, head injury, or other acute injuries were observed.  Id.  The occurrence report indicates preventive measures at the time of the fall included a low bed, and for alarm “none” is indicated.  Id. at 77-78.  A post-fall assessment was performed and fall risk precautions were put in place.  Id. at 14-17.  The assessment noted that falls had occurred before (although it does not specify the number or dates of those falls).  Id. at 62.  The

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root cause was determined to be related to R12’s dementia, and R12’s profile was updated, “staff to monitor and repositioning res. in bed as needed.”  Id. at 65. 

On January 29, 2021, R12 was found lying on the floor.  Id. at 14.  The alarm is noted as “not sounding” on the occurrence report.  Id. at 80.  She was assessed for pain, and no injury was reported.  Id. at 79.  Notes on January 30, 2021, state that R12 continues to “get up and down thru the night . . . .”  Id. at 13.  Again, a post-fall assessment was performed with the notation that falls have occurred before.  Id. at 67.  The root cause is noted as R12 self-transferring from bed to wheelchair, and as “unable to educate.”  Id. at 70.  R12’s profile was updated, “staff to offer to toilet resident [every two hours] as applicable.  Id. 

On February 2, 2021, progress notes indicate R12 was yelling for help and was found sitting on her bottom beside her bed.  Id. at 12.  Nurse’s notes state R12 was observed in bed sleeping 20 minutes prior to hearing her call for help.  Id. at 81.  The alarm was indicated as not sounding.  Id. at 82.  R12 did not know what happened.  Id. at 12, 81.  She denied injury, and none was noted following the assessment.  Id. at 12.  R12 was assisted by staff and placed on bed.  Id. at 75.  Notes from the post-fall assessment completed on February 2, 2021, state R12 is to be toileted post meal and every two hours as applicable.  Id. 

CMS contends that the facility violated § 483.25(d) by failing to implement the intervention, i.e., the bed alarm, ordered for R12.  CMS Br. at 18.  CMS also states that R12’s care plan was not updated following the three falls in January and February 2021, and that it was not until March 2021 when new interventions were finally added.  Id.  Petitioner responds that “bed alarms are not preventative measures so much as they alert to an even[t], as or after it happened.”  P. Br. at 15.  Petitioner further proffers that falls are more prevalent when alarms are excessively used as they can cause fright or startle fall prone residents.  Id. 

Petitioner’s contention that bed alarms as not preventive measures are belied by its own records.  Petitioner’s “Occurrence Report” includes “Alarm” as a “Preventive measure[] at time of fall.”  See, e.g., CMS Ex. 18 at 82 (emphasis added).  As Petitioner points out, bed alarms “alert to an even[t], as or after it happened.”  P. Br. at 15 (emphasis added).  Considering R12’s “tendency to sleep with legs over side of bed” and her history of attempts to self-transfer from her bed, an alarm would have been useful to alert staff when the resident moved to a potentially unsafe position in bed and provide appropriate assistance and/or repositioning.  CMS Ex. 18 at 59-60.  More to the point, R12’s care plan required a bed alarm, a fact that Petitioner does not dispute.  Thus, the facility was required to use and provide a functioning bed alarm, but it failed to do so.  CMS Ex. 18 at 78, 80, 82 (alarm is documented as not sounding or not in use).  Compare also CMS Ex. 18 at 60 (care plan requiring a HELP sign was to be added to R12’s walker as a reminder to wait for assistance), with CMS Ex. 27 at 19 (surveyor notes stating R12’s walker did

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not have a sign).  It is well-settled that a resident’s care plan represents the facility’s judgment about what care and services are needed to keep the resident safe.  If facility staff fail to provide care and services in accordance with the resident’s comprehensive assessment and plan of care, it violates § 483.25.  White Sulphur Springs Ctr., DAB No. 2520 at 6-7 (2013); Deltona Health Care, DAB No. 2511 at 7-8 (2013); Venetian Gardens, DAB No. 2286 at 5 (2009). 

Also, despite the multiple falls in January and February 2021, R12’s care plan was not updated until March 2021, a fact that Petitioner does not challenge.  I acknowledge post-fall assessments included handwritten notes that R12’s profile was updated to monitor and reposition as needed after the January 15 fall, to offer toileting every two hours as applicable after the January 29 fall, and to offer toileting after meals and every two years after the February 2 fall, but those interventions were not included in R12’s care plan until March 2021.  Compare CMS Ex. 18 at 59-60, with CMS Ex. 18 at 65, 70, 75.  The surveyor testified that, “[i]f an intervention is not listed in a Care Plan, it is unlikely staff is implementing that intervention.”  CMS Ex. 26 ¶ 7.  Petitioner does not challenge the surveyor’s assessment.  I find, based on the facility’s failure to follow its own policy to have its residents’ care plans incorporate interventions that are changed or added after each fall as appropriate, that Petitioner failed to comply with requirements imposed by the regulation.  See Heritage House of Marshall Health & Rehab., DAB No. 3035 at 11 (failing to comply with a facility’s own policies supports the finding that the facility was not acting within the standard of care and was not in substantial compliance with § 483.25). 

R2.  R28  was admitted to the facility on January 23, 2018.  CMS Ex. 32 at 1.  R2 was identified at risk for falling on August 1, 2018.  Id. at 65.  At that time, R2’s care plan interventions included giving verbal reminders not to ambulate/transfer without assistance, keeping the bed in lowest position, keeping the call light in reach, providing proper, well-maintained footwear, providing an environment free of clutter and providing toileting assistance as needed.  Id. at 65-66. 

On September 29, 2020, a quarterly Fall Risk Assessment was performed and completed on October 5, 2020.  CMS Ex. 32 at 6.  R2 was noted to have intermittent confusion and required the use of an assistive device.  Id.  R2 was also assessed to be up ad lib and independent in toileting.  Id.  R2’s medications included antidepressants and antihypertensives.  Id.  R2 had cardiovascular and neuromuscular/functional conditions.  Id. at 7.  At the time of the assessment, R2 had not experienced any falls, and her fall risk score was 9, a low risk.  Id. at 6-7.  Despite the facility’s policy that Fall Risk Assessments be performed quarterly, CMS Ex. 56 at 34, over five months passed before another assessment was performed on March 9, 2021, following R2’s fall, and again on March 22, 2021, following another fall.  CMS Ex. 32 at 8, 10. 

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On March 9, 2021, responding to R2’s roommate’s call for help, R2 was found “sitting on the floor beside her bed.”  Id. at 12.  R2 stated she sat “too close to the edge and slid right off.”  Id.  R2 denied pain and her range of movement in extremities was within normal limits, and she was able to stand and ambulate.  Id.  R2’s socks were noted to be slippery and non-slip socks were provided.  Id.  In addition, shoes were provided before leaving for dinner.  Id. 

In the early morning hours on March 10, 2021, R2 fell again.  Id. at 27.  Progress notes state R2 sat on a waste basket for toileting and was found to be dyspneic and disoriented.  Id.  R2 reported she hit her head, and a right eye laceration was noted.  Id.  R2 was transferred to the hospital, where she was admitted and treated for acute respiratory failure and hip fracture.  Id. at 72.  R2 was discharged on March 16, 2021.  Id.  Upon her return to the facility, a Readmission Observation was performed, and R2 was care planned for restorative ambulation, and physical and occupational therapy.  P. Ex. 8 at 21, 41-42. 

R2 fell again on March 22, 2021.  CMS Ex. 32 at 18.  Nursing staff were answering call lights and noted R2 sitting by a bed in another resident’s room.  Id.  R2 reported she left the bathroom and was confused.  Id.  On March 23, 2021, R2’s care plan was updated to include non-skid socks and shoes to be worn while ambulating and to place a sign on her door to help remind her to use the call light for assistance.  Id. at 65. 

CMS argues that the facility violated its own policy by failing to perform quarterly risk assessments for R2.  CMS Br. at 19.  CMS is correct that, in accordance with its policy, the facility should have performed a quarterly assessment following the quarterly assessment completed on October 5, 2020, because R2 was assessed as a low fall risk.  CMS Ex. 32 at 7; see also CMS Ex. 56 at 34 (requiring quarterly assessment unless already assessed as at risk for falls (score of 10 or more)). 

Petitioner does not deny that the quarterly Fall Risk Assessment was not timely performed but instead proffers that R2’s Minimum Data Set (MDS) annual assessment was performed on January 1, 2021, and a functional needs assessment completed on December 29, 2020.  P. Br. at 16-17.  Petitioner states these assessments are designed to fully assess the residents and identify all problems or potential problems such as a risk for falls.  Id. at 17. 

Petitioner offers no evidence to support its contentions that the MDS assessments and functional needs assessments take the place of quarterly fall risk assessment specifically required by its policy.  In fact, the excerpts provided by Petitioner show that the MDS assessments merely document that R2 did not have any falls since admission or reentry or prior assessment.  P. Ex. 8 at 2-9.  The Functional Abilities Assessment performed on December 29, 2020, provides a more comprehensive assessment of R2’s ability to

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perform activities of daily living, including self-care and mobility, but it does not address any change in R2’s physical or medical condition.  Id. at 10-17.  These documents do not contain a detailed analysis of R2’s risk for falling or discuss any interventions to address identified risks, which is what its policy required through the performance of quarterly fall risk assessments.  Petitioner also contends that the surveyor concluded that R2’s falls were “unavoidable,” but offers no evidence to support this statement.  P. Br. at 17.  Moreover, without proper and timely assessment, there is an insufficient basis from which one could reasonably find accidents are avoidable or not.  Therefore, I find that Petitioner did not meet the requirements of § 483.25(d) because it failed to identify and address R2’s risk for falls. 

Petitioner’s failure to meet these requirements had the potential to cause more than minimal harm.  Surveyor testimony explains the significant potential harm posed by falls to older residents, as well as the increased risk of additional falls after a resident falls once.  See, e.g., CMS Ex. 28 ¶ 15.  Petitioner does not suggest otherwise.  Indeed, here R2 suffered actual harm following her March 10 fall, which resulted in a fractured hip. 

E.  The facility was not in substantial compliance with 42 C.F.R. § 483.24(a)(2) because it was not providing its residents the necessary ADL services and support to maintain good grooming and personal hygiene. 

Program Requirement:  42 C.F.R. § 483.24(a)(2) (Tag F677).  The statute mandates that the facility ensure that each resident receive, and the facility provide, the necessary care and services to allow the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the resident’s comprehensive assessment and plan of care.  Act § 1819(b)(2), 42 U.S.C. § 1395i-3(b)(2).  Section 483.24 recognizes that quality of life “is a fundamental principle that applies to all care and services provided to facility residents.”  The regulation mandates, among other requirements, that the facility “ensure” that a resident who is unable to carry out activities of daily living “receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene[.]”  42 C.F.R. § 483.24(a)(2).  “Activities of daily living” include hygiene - bathing, dressing, grooming, and oral care.  42 C.F.R. § 483.24(b)(1). 

Facility policy.  The facility had in place a “Bath (Shower)” policy, the objective of which was to “cleanse and refresh the resident at least weekly by providing one complete bath and hair wash” and “to observe the skin.”  CMS Ex. 56 at 3.  The policy outlined the equipment and procedure to be used.  Id.  The steps included placing the resident in a shower chair, washing face and shampooing hair, washing upper and lower extremities, body and feet, washing the perineal area, drying the resident, applying lotion to protect the skin, dressing the resident and drying hair, and to report any reddened areas, skin discolorations or skin breaks.  Id. 

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The facility also had an “Activities of Daily Living (ADLs)” policy that states residents who are unable to carry out ADLs will receive the services necessary to maintain good nutrition, grooming and personal and oral hygiene.  Id. at 4.  Appropriate care and services includes assistance with “[h]ygiene (bathing, dressing, grooming, and oral care).”  Id. 

R2 and R5.9  R2 was admitted to the facility on January 21, 2021.  CMS Ex. 36 at 1.  R2 was totally dependent on staff for bathing and required “[t]wo+ persons physical assist.”  Id. at 49-50. 

The facility’s point of care history shows that R2 received a shower on March 17, 2021, and a complete bed bath on March 29, 2021.  Id. at 42.  The evidence shows that showers included a hair wash and skin assessment.  Id. at 32-37; cf. id. at 36 (shower marked as given, but skin assessment was not performed).  While the history shows R2 received partial bed bath and other baths on March 18, 26, and 27, 2021, there is insufficient evidence to demonstrate that these satisfy the facility’s requirement to provide one complete bath and hair wash.  Id.; see also P. Ex. 9 at 4.  Notably, there is no documentation that shows what is included in a partial bed bath or other bath or that any skin assessment occurred.  Also, the history shows R2 received a complete bath on April 4, 2021, a shower on April 10, 2021, but only partial bed baths on April 11 and 18, 2021.  CMS Ex. 36 at 38.  This is a violation of its policy to provide one complete bath and hair wash at least weekly. 

R5 was admitted on August 4, 2020.  CMS Ex. 37 at 1.  R5 required physical help with bathing, one-person physical assist.  Id. at 36-37.  The point of care history shows that R5 received only partial bed baths and other baths from April 1, 2021, to April 19, 2021.  Id. at 51; see also id. at 53 (showing more than weeklong gaps in complete bed baths in March 2021).  Petitioner’s evidence is in accord.  P. Ex. 9 at 1-3. 

Both R2 and R5 were at risk for skin breakdown.  CMS Ex. 36 at 28; CMS Ex. 37 at 12-13.  Both care plans required keeping the skin as clean and dry as possible, to assess the residents for the presence of risk factors and to treat, eliminate or reduce risk factors to the extent possible, and conduct systematic skin inspections.  CMS Ex. 36 at 28; CMS Ex. 37 at 12.  Therefore, it was imperative that the residents’ bathing schedules were met, and skin regularly observed to identify and treat risk factors.  The facility’s failure to do so had the potential to cause more than minimal harm considering the residents’ risks for skin breakdown. 

Facility policy.  The facility had in place an ADLs policy which stated that residents who are unable to carry out activities of daily living including “[e]limination (toileting)” will

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“receive services necessary to maintain . . . personal . . . hygiene.”  CMS Ex. 56 at 4.  The policy further explains that “[a]ppropriate care and services will be provided for residents who are unable to carry out ADLs independently, with the consent of the resident and in accordance with the plan of care . . . .”  Id. 

R1.  R110  was admitted to the facility on February 13, 2021.  CMS Ex. 44 at 1.  The MDS completed on April 2, 2021, indicates that R1 occasionally experienced urinary incontinence and frequently experienced bowel incontinence.  Id. at 13.  Also, R1 required two-person+ assist for toileting.  Id. at 14. 

R1’s care plan included a toileting plan, which included encouraging R1 to voice needs to toilet, monitoring for any changes in elimination pattern and to notify the physician as noted, and toileting every one to two hours, or as needed.  Id. at 40.  A review of R1’s care plan shows that she was at risk for fluid volume excess/deficit related to renal failure for which staff was required to monitor for increased urinary output and liquid stools and notify the doctor as appropriate, as well as hypertension, for which staff was to monitor for abnormalities in urinary output and to report any significant changes to her doctor.  Id. at 50, 53.  Beginning February 6, 2021, in response to R1’s risk for falls, R1’s care planning included “toileting assistance with 2 staff every 2hrs, prn, and at residents request[in]g[].”  Id. at 74. 

R1’s point of care history includes a Bowel/Bladder chart indicating the level of control of bladder and bowel function.  CMS Ex. 44 at 75-82.  Each day includes two to four entries, some of which include time entries, but most do not.  The entries indicate: continent, incontinent or unanswered.  Id.  Each of the daily entries includes shift information.  Id.  On May 12, 2021, the date of the surveyor’s visit, there are three entries for bladder function: for shifts 1 and 3 there are no time stamps and the answers are noted as unanswered and, for shift 2, there is a 4:51 p.m. time stamp and the answer is noted as continent.  Id. at 75.  The same notations are noted for bowel function.  Id. at 79. 

The Surveyor testified that she would expect to see the facility record every time R1 was toileted in the point of care history.  CMS Ex. 8 ¶ 18.  Petitioner does not dispute the surveyor’s testimony and provides no evidence that R1 was toileted in accordance with her care plan.  Moreover, R1 stated in her interview that “the facility does not get R1 on the commode anymore due to R1 requir[ing] a full mechanical lift . . . .”  CMS Ex. 48 at 3.  R1 further explained that she is incontinent at times because of not being able to get timely toileted.  Id.  R1 stated that staff will turn the call light off and leave her room without meeting her needs and requested the staff meet her needs, including toileting, before the light gets shut off.  Id. 

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Petitioner does not dispute R1’s statements but instead states that the facility was servicing R1 with a bedpan because of the resident’s preference.  P. Br. at 19.  Petitioner’s argument misses the point.  R1 required assistance with toileting as documented in her care plan.  The facility was required to toilet R1 at least every two hours and as needed, whether by bedpan or otherwise.  The evidence demonstrates that the facility failed to meet this requirement. 

Therefore, I find the facility was not in substantial compliance with the regulation’s requirements, which caused more than a risk for minimal harm given the multiple conditions for which she was at risk and required monitoring. 

F.  The facility was not in substantial compliance with 42 C.F.R. § 483.60(c)(3) because it did not follow the therapeutic diets prescribed for its residents.  

Program requirement:  42 C.F.R. § 483.60(c)(3) (Tag F803).  The facility’s menus must:  1) meet the nutritional needs of the residents; 2) be prepared in advance; 3) be followed; 4) reflect the religious, cultural, and ethnic needs of the resident population, as well as input from the residents and resident groups; 5) be updated periodically; and 6) be reviewed by the facility’s dietician or other clinically qualified nutrition professional for nutritional adequacy.  42 C.F.R. § 483.60(c)(1)-(6) (Emphasis added).  Nothing in the regulation “should be construed to limit the resident’s right to make personal dietary choices.”  42 C.F.R. § 483.60(c)(7). 

Facility policy.  The facility had in place a “Therapeutic Diets” policy.  CMS Ex. 56 at 36.  The policy explains that a tray identification system is established to ensure that each resident receives his or her diet as ordered.  Id. 

R3 and R4.11  R3 was admitted to the facility on June 5, 2020, and his diagnoses included type 2 diabetes mellitus without complications.  CMS Ex. 51 at 1.  The diet prescribed on February 24, 2021, was no concentrated sugar (NCS), no added salt (NAS), and regular texture.  Id.  The facility’s diet roster reflects R3’s prescribed diet.  CMS Ex. 54 at 2. 

R4 was admitted on March 17, 2020, and his diagnoses included chronic kidney disease.  CMS Ex. 52 at 1.  R4’s prescribed diet on March 26, 2021, indicates regular texture, NCS, no bananas, oranges, orange juice, baked potato, fresh tomato, and to offer double protein at meals and limit dairy.  Id.  The facility’s diet roster reflects R4’s prescribed diet.  CMS Ex. 54 at 3.  

The facility’s diet spreadsheet states NCS diets should have the # 12 dipper (or 3 ounces) of bread pudding/pudding.  CMS Ex. 53 at 1; CMS Ex. 55 at 2.  Surveyor notes indicate

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that V17, the Regional Dietary Manager, confirmed that a regular diet should have the # 8 dipper (4 ounces) of pudding and that NCS diets should have # 12 dipper (3 ounces).  CMS Ex. 55 at 2. 

The surveyor’s observation notes indicate that the surveyor observed both R3 and R4 having received full cups of pudding.  Id. at 3, 8.  V16, a dietary aide, stated she was the one that prepared the pudding and that everyone got the same amount, using the # 8 dipper.  Id. at 1.  V16 further stated that “[e]veryone got the same amount [b]ecause I didn’t know how much to give them.”  Id.  

Petitioner does not dispute that the residents received one more ounce than their prescribed diets allowed, but it instead argues that this is not a deficit practice as it related to the requirements under F803.  P. Br. at 22.  Petitioner states that the purpose of the requirement is to ensure that menus are developed and prepared to meet the residential choices and needs, and that the facility’s menus meet these requirements.  Id. 

However, Petitioner fails to acknowledge that 42 C.F.R. § 483.60(c)(3) requires that menus “be followed.”  Not only were the residents not given the portions their prescribed diets required, but the facility’s staff did not know how much to give them, which reflects a more widespread issue.  As Petitioner notes, these residents’ menus were developed to meet their dietary needs, including to help manage their medical conditions which included type 2 diabetes and chronic kidney disease.  Failure to follow their prescribed diets posed more than a minimal risk of harm, a fact that Petitioner does not dispute.  See CMS Ex. 28 ¶ 20 (explaining the adverse health effects on concentrated sweets on blood sugar levels and kidneys).  Therefore, the facility’s failure to follow and provide the residents their prescribed diets put it out of substantial compliance with the regulation’s requirements. 

G.  Remedies

1.  CMS may impose remedies when the facility is not in substantial compliance with Medicare program requirements. 

I have concluded that Petitioner failed to comply substantially with multiple program requirements.  Therefore, CMS was authorized to impose a DDPNA and CMP as redress for the failures by the facility to comply with Medicare participation requirements.  42 C.F.R. §§ 488.417(a), 488.430(a).  I next explain why I conclude that the remedies imposed by CMS are appropriate in duration and the CMP imposed for Petitioner’s noncompliance is reasonable in amount. 

The duration of the remedies is controlled by 42 C.F.R. § 488.454.  With exceptions that do not apply here, the duration of remedies will continue in effect until: 

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The facility has achieved substantial compliance, as determined by CMS or the State based upon a revisit or after an examination of credible written evidence that it can verify without an on-site visit[.] 

42 C.F.R. § 488.454(a)(1).  The regulation creates a presumption that noncompliance, once established, continues until CMS or a state agency can verify compliance through an on-site inspection.  CMS has no burden to establish continuing noncompliance during a period when a remedy is in effect.  N. Mont. Care Ctr., DAB No. 1930 at 8 (2004).  The burden falls entirely on a facility to establish that it has attained compliance. 

Here, Petitioner offers nothing to show that it corrected its noncompliance prior to May 26, 2021, except to say it was in substantial compliance with program requirements.  P. Br.  I reject this argument as I have found that Petitioner was not in substantial compliance with multiple Medicare participation requirements.  I therefore sustain the duration of the denial of payment for new admissions and per-day CMP. 

2.  The $870 per-day CMP amount imposed by CMS is reasonable. 

To determine whether a civil money penalty is reasonable, I apply the factors listed in 42 C.F.R. § 488.438(f):  (1) the facility’s history of noncompliance; (2) the facility’s financial condition; (3) factors specified in 42 C.F.R. § 488.404; and (4) the facility’s degree of culpability, which includes neglect, indifference, or disregard for resident care, comfort or safety.  The absence of culpability is not a mitigating factor.  The factors in 42 C.F.R. § 488.404 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.  However, unless a facility contends that a particular regulatory factor does not support the CMP amount, an ALJ must sustain it.  Coquina Ctr., DAB No. 1860 (2002). 

I consider whether the evidence supports a finding that the amount of the CMP is at a level reasonably related to an effort to produce corrective action by a provider with the kind of deficiencies found and in light of the section 488.438(f) factors.  I am neither bound to defer to CMS’s factual assertions nor free to make a wholly independent choice of remedies without regard for CMS’s discretion.  Barn Hill Care Ctr., DAB No. 1848 at 21 (2002); Cmty. Nursing Home, DAB No. 1807 at 22 et seq. (2002); Emerald Oaks, DAB No. 1800 at 9 (2001); CarePlex of Silver Spring, DAB No. 1638 at 8 (1999). 

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

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Penalties are inflation-adjusted and change annually.  The amount is determined as of the date the penalty is assessed, in this case, August 2, 2021.  CMS Ex. 2 at 1; 85 Fed. Reg. 2869, 2879 (Jan. 17, 2020).  Here, CMS imposed a per-day CMP of $870, which is at the very low end of the range for per-day CMPs ($112 to $6,695).  42 C.F.R. §§ 488.408(e), 488.438; 45 C.F.R. § 102.3; 85 Fed. Reg. at 2879. 

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)). 

3.  Applying the regulatory criteria to this case. 

Considering the relevant factors, CMS has established that the relatively low CMP is reasonable. 

With respect to its prior compliance history, Petitioner asserts that its history of noncompliance does not justify the CMP imposed.  P. Br. at 24.  Petitioner further argues that it is unfair to base a CMP on prior history because CMS “routinely denies facilities the right to contest the majority of citations and tags written against them.”  Id.  Petitioner’s arguments are misleading.  Petitioner has an ample history of noncompliance, even when considering only the deficiencies that resulted in CMS imposing a CMP.  In such cases, Petitioner would have been offered the opportunity for a hearing to dispute the deficiencies.  

CMS has provided evidence, in the form of its Automated Survey Processing Environment (ASPEN) Enforcement Module (AEM) report, which shows the following deficiencies: 

• F-level deficiency for Tag F-0884 (Infection prevention and control) in January 2021 with a $650 CMP imposed (CMS Ex. 58 at 1);
• Three E-level deficiencies, one for Tag F-0573 (Special Needs), one for Tag F-0842 (medical records) and the other for Tag F-0880 (related to abuse) in August 2020 with a $9,978.73 CMP imposed (Id. at 2);
• G-level deficiency for Tag F-0328 (quality of care) in August 2017 with a $11,521.93 CMP imposed (Id. at 5). 

Petitioner had the opportunity to contest these findings, but it did not.  By itself, the facility’s history (even discounting the findings that were not appealable) justifies the modest penalty imposed. 

CMS has already reduced the total amount of the penalty imposed by ten percent based on Petitioner’s arguments and evidence of financial hardship.  Petitioner, however, argues

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that this reduction was insufficient.  P. Br. at 24-25.  Petitioner asks me to consider the change in the long-term care landscape as a result of the Covid-19 pandemic.  Id. at 24.  Specifically, Petitioner contends that staff is more expensive and harder to find, especially with nurse staffing agencies and travel nurses artificially inflating the hourly rate of staff, and the use of personal protective equipment used at a rate previously unheard of and more expensive than before.  Id. at 25.  Finally, Petitioner asks I consider the financial impact of the DDPNA as well as the fines imposed by the state agency, which totaled over $25,000.  Id. 

The facility has the burden of proving, by a preponderance of the evidence, that paying the penalty would render it insolvent or would compromise the health and safety of its residents.  Fireside Lodge Ret. Ctr., Inc., DAB No. 2794 at 20 (2017); Van Duyn Home & Hosp., DAB No. 2368 (2011); Gilman Care Ctr., DAB No. 2357 (2010).  To meet the standard for lowering a CMP based on financial condition, a facility’s claims must be supported by compelling financial documentation.  In Guardian Care Nursing & Rehab. Ctr., DAB No. 2260 (2009), for example, the facility could not even afford to represent itself on appeal.  Its Medicaid census was 90%; its annual shortfall was $250,000; and it relied on charitable contributions for its continued viability.  The Board, nevertheless, criticized the absence of financial documentation and concluded that the facility had not established that additional resources would not be available.  But see, Columbus Nursing & Rehab. Ctr., DAB No. 2505 (2013) (finding that the absence of documentation regarding the facility’s financial condition did not preclude the ALJ from concluding, based on witness testimony, that its financial condition justified reducing the penalty amount). 

Petitioner’s assertions regarding the rising staffing and equipment costs imposed on the facility because of the Covid-19 pandemic falls far short of establishing that paying the penalty would put the facility out of business or compromise resident health or safety.  I am not persuaded by the evidence that Petitioner does not have sufficient funds to pay the CMP, and, significantly, Petitioner does not argue that it cannot pay the reduced CMP amount without going out of business or endangering resident health or safety.  Balance sheets provided by Petitioner indicate that it held $1.4 million in equity at the end of May 2021.  P. Ex. 1 at 30; see also id. at 37, 60.  As the Board stated in Gilman, “the facility may be expected to satisfy its obligations to the federal government before making payments to its owners.”  DAB No. 2357 at 8.  

I reiterate that financial condition is only one of the factors I must consider.  With respect to the remaining factors, I have discussed in detail the facility’s failures to follow physician orders for their residents’ care.  For example, the facility’s failure to properly administer medication in accordance with R1’s prescribed care resulted in R1 experiencing significant pain that required transfer to and treatment in an emergency room.  The facility’s failure to also perform timely assessments prevented it from identifying R2’s risks for falls and appropriately care planning for the same.

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R2 experienced multiple falls, one of which resulted in a hip fracture.  For all of this, the facility is culpable. 

Therefore, a substantial penalty is warranted owing to the egregiousness of Petitioner’s noncompliance.  Even if Petitioner demonstrated that its financial condition warranted a further reduction in the total CMP, the other factors support a much larger CMP than what was imposed by CMS.  The per-day CMP of $870 is reasonable for multiple serious deficiencies.  Petitioner, which continues to have substantial assets, has not shown that payment of the CMP would put it out of business or compromise resident health and safety, and the evidence therefore does not justify reducing the CMP based on Petitioner’s financial condition, especially when considering the other regulatory factors.  

For these reasons, I find that the low-end CMP imposed here is reasonable. 

IV.  Conclusion

I affirm CMS’s determination that Petitioner was not in substantial compliance with Medicare program requirements.  I conclude that the $870 per-day CMP from February 23, 2021, to May 25, 2021, which CMS reduced by 10%, for a total of $72,036, is reasonable, and that the DDPNA imposed from March 12, 2021, to May 25, 2021, is appropriate.