Sarah Brayton Nursing Center, DAB CR6814 (2026)

DECISION

Petitioner, Sarah Brayton Nursing Center, is a skilled nursing facility, located in Fall River, Massachusetts, that participates in the Medicare program.  One of its residents, a 76-year-old woman with a significant history of falls, fell 14 times in eight months.  One of those falls resulted in a head injury that required stitches. 

Based on a recertification survey, completed on September 18, 2023, the Centers for Medicare & Medicaid Services (CMS) determined that the facility was not in substantial compliance with multiple Medicare program requirements, including the quality-of-care regulation.  42 C.F.R. § 483.25(d).  For that deficiency only, CMS imposed a civil money penalty (CMP) of $2,110 per day for 72 days of substantial noncompliance. 

Petitioner has appealed, and CMS moves for summary judgment, which Petitioner opposes. 

For the reasons set forth below, I grant CMS’s motion.  I find that the undisputed evidence establishes that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d) and that the penalty imposed is reasonable. 

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Background

The Social Security Act (Act) sets forth requirements for nursing facilities to participate in the Medicare program and authorizes the Secretary of Health and Human Services to promulgate regulations implementing those statutory provisions.  Act § 1819.  The Secretary’s regulations are found at 42 C.F.R. Part 483.  To participate in the Medicare program, a nursing facility must maintain substantial compliance with program requirements.  To be in substantial compliance, a facility’s deficiencies may pose no greater risk to resident health and safety than “the potential for causing minimal harm.”  42 C.F.R. § 488.301. 

The Secretary contracts with state survey agencies to conduct periodic surveys to determine whether skilled nursing facilities are in substantial compliance.  Act § 1864(a); 42 C.F.R. § 488.20.  Each facility must be surveyed annually, with no more than fifteen months elapsing between surveys.  Facilities must be surveyed more often, if necessary, to ensure that identified deficiencies are corrected.  Act § 1819(g)(2)(A); 42 C.F.R. §§ 488.20(a); 488.308.  The state agency must also investigate all complaints.  Act § 1819(g)(4). 

Here, from September 11 through 18, 2023, surveyors from the Massachusetts Department of Health (state agency) conducted a recertification survey of the facility.  Based on the survey findings, CMS determined that the facility was not in substantial compliance with: 

• 42 C.F.R. § 483.10(i)(1)-(7) (Tag F584 – resident rights: safe environment), 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. § 483.21(b)(1)(3) (Tag F656 – comprehensive person-centered care plans), 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. § 483.21(b)(3)(i) (Tag F658 – comprehensive person-centered care plans: professional standards of quality), cited at scope and severity level D;
• 42 C.F.R. § 483.24(a)(1)(b)(1)-(5)(i)-(iii) (Tag F676 – quality of life: activities of daily living), cited at scope and severity level D;
• 42 C.F.R. § 483.24(c)(1) (Tag F679 – quality of life: activities), cited at scope and severity level E;

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• 42 C.F.R. § 483.25(d)(1) and (2) (Tag F689 – quality of care: accident prevention), 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);1
• 42 C.F.R. § 483.25(e) (Tag F690 – quality of care: incontinence care), cited at scope and severity level D;
• 42 C.F.R. § 483.25(l) (Tag F698 – quality of care: dialysis), cited at scope and severity level D;
• 42 C.F.R. § 483.25(m) (Tag F699 – quality of care: trauma-informed care), cited at scope and severity level D;
• 42 C.F.R. § 483.45(f)(1) (Tag F759 – pharmacy services: medication errors), cited at scope and severity level D;
• 42 C.F.R. § 483.45(g)(h)(1)(2) (Tag F761- pharmacy services: labeling and storage of drugs and biologicals), cited at scope and severity level E;
• 42 C.F.R. § 483.60(d)(1)(2) (Tag F804 – food and nutrition services: food and drink), cited at scope and severity level E;
• 42 C.F.R. §§ 483.20(f)(5), 483.70(i)(1)-(5) (Tag F842 – resident assessment: records, identifiable information; administration:  medical records), cited at scope and severity level D;
• 42 C.F.R. § 483.80(a)(1)(2)(4)(e)(f) (Tag F880 – infection control: prevention and control program), cited at scope and severity level E; and
• 42 C.F.R. § 483.90(d)(2) (Tag F908 – physical environment: space and equipment), cited at scope and severity level E. 

CMS Ex. 26.2

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Based solely on the section 483.25(d) deficiency, CMS imposed a CMP of $2,110 per day for 72 days of substantial noncompliance (September 11 through November 21, 2023) (Total:  $151,920).  CMS Ex. 2 at 2. 

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 43 exhibits (CMS Exs. 1-43). 

Petitioner filed its own prehearing brief and opposition to summary judgment (P. Br.) with seven exhibits (P. Exs. 1-7). 

Because I decide this case on summary judgment, I consider the proffered evidence, as required by Rule 56(c)(3) Fed. R. Civ. P., to determine whether it creates a material fact in dispute; I 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 (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.  Univ. of Tex. MD Anderson Cancer Ctr., DAB No. 2927 at 18 (2019) (quoting Lackawanna Med. Grp. Lab., DAB No. 1870 at 14 (2003)). 

Issues

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

On the merits, the issues before me are: 

• From September 11 through November 21, 2023, was the facility in substantial compliance with 42 C.F.R. § 483.25(d); and
• If the facility was not then in substantial compliance, is the penalty imposed – $2,110 per day for 72 days of substantial noncompliance – reasonable?

Because no penalties were imposed for the remaining deficiencies, they are not reviewable.  A facility may challenge a finding of substantial noncompliance for which 

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CMS imposes one of the remedies specified in 42 C.F.R. § 488.406.  42 C.F.R. § 498.3(b)(13).  However, unless CMS imposes one of those remedies, the facility has no right to review.  The remedy, not the citation of a deficiency, triggers the right to review.  The Lutheran Home – Caledonia, DAB No. 1753 (2000). 

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. Tex. LTC Partners, Inc., d/b/a Cedar Manor, DAB No. 2652 at 5 (2015); Bartley Healthcare Nursing & Rehab., DAB No. 2539 at 3 (2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)); Ill. Knights Templar Home, DAB No. 2274 at 3-4, and cases cited therein.3 

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 

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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, 587 (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-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 Partners, DAB No. 2652 at 6-7; cf. Guardian, DAB No. 1943 at 11 (“A dispute over the conclusion to be drawn from applying relevant legal criteria to undisputed facts does not preclude summary judgment if the record is sufficiently developed and there is only one reasonable conclusion that can be drawn from those facts.”); 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 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 

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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). 

Here, Petitioner asserts that it has “set forth sufficient facts that not only establish that genuine issues of material fact still exist, but that it is and was, in fact, at all relevant times to the instant appeal, in substantial compliance with the cited deficiency.”  P. Br. at 17.  But Petitioner has not come forward with such facts.  Instead, as explained in the following discussion, Petitioner describes facts that are not in dispute and argues that those undisputed facts mean that the facility was in substantial compliance.  For example, Petitioner acknowledges that one of its residents fell multiple times but claims that none of these falls was “foreseeable” and that, after each fall, it implemented an “appropriate” intervention.  

Whether the facility’s responses were “appropriate” is not a question of fact; it is a legal conclusion.  Whether a fall was “foreseeable” is not a question of fact; it is a conclusion based on the undisputed facts.  As noted above, a dispute over the conclusion to be drawn from applying legal criteria to undisputed facts does not preclude summary judgment.  W. Tex. LTC Partners, DAB No. 2652 at 6-7, 14-15. 

Because the evidence in this case is so one-sided that CMS must prevail as a matter of law and because Petitioner did not tender arguments or evidence of specific facts showing that a dispute exists, I grant CMS’s motion for summary judgment. 

1. 1. The undisputed evidence establishes that the facility was not in substantial compliance with 42 C.F.R. § 483.25(d) because it did not ensure that a vulnerable resident – who fell 14 times – was adequately supervised and provided assistance devices to prevent accidents.4

Program requirement:  42 C.F.R. § 483.25(d) (Tag F689).  The Medicare 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). 

The quality-of-care regulation characterizes quality of care as a “fundamental principle that applies to all treatment and care provided to facility residents.”  Based on the resident’s comprehensive assessment, the facility must ensure that the resident receives 

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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 remain as free of accident hazards as possible and that each resident receive adequate supervision and assistance devices to prevent accidents.  42 C.F.R. § 483.25(d); Del Rosa Villa, DAB No. 2458 at 7 (2012); Clermont Nursing & Convalescent Ctr., DAB No. 1923 at 9-10 (2004), aff’d sub nom. Clermont Nursing & Convalescent Ctr. v. Leavitt, 142 F. App’x. 900 (6th Cir. 2005); accord, Briarwood Nursing Ctr., DAB No. 2115 at 5 (2007) (holding that the facility must “take all reasonable steps to ensure that a resident receives supervision and assistance devices designed to meet his or her assessed needs and mitigate foreseeable risks of harm from accidents.”). 

The regulation “imposes on facilities an affirmative duty designed to achieve favorable outcomes to the highest practicable degree.”  Sheridan Health Care Ctr., DAB No. 2178 at 14 (2008), citing Windsor Health Care Ctr., DAB No. 1902 at 16-17 (2003); Woodstock Care Ctr., DAB No. 1726 at 3-4 (2000), aff’d, Woodstock Care Ctr. v. Thompson, 363 F.3d 583 (6th Cir. 2003).  “The regulation focuses not on whether an accident occurs, but, rather, on whether the facility has provided supervision and assistance devices adequate to prevent an accident.”  Kenton Healthcare, LLC, DAB No. 2186 at 13 (2008). 

Facility Policies.  CMS “may reasonably rely on a facility’s policy relating to the care and treatment of its residents as evidencing the facility’s understanding of what must be done to attain or maintain its residents’ highest practicable physical, mental, and psychosocial well-being, as required by section 483.25.”  Green Valley Healthcare and Rehab. Ctr., DAB No. 2947 at 6 (2019), citing The Laurels at Forest Glen, DAB No. 2182 at 18 (2008); North Las Vegas Care Ctr., DAB No. 2946 at 6 (2019); Hanover Hills 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.”). 

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., d/b/a The Good Shepherd Home, 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 Healthcare Ctr., DAB No. 2051 at 9 (2006). 

Here, the parties agree that the facility had in place policies designed to ensure that its residents’ environment remained free of accident hazards, that its residents were 

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adequately supervised, and that they were provided the assistance devices to prevent accidents.  CMS Exs. 24, 25; P. Ex. 4 at 2-5 (Sarza Decl. ¶¶ 8-10).5

Facility policy:  managing falls and fall risk.  The facility had in place a policy that required staff to “identify interventions related to the resident’s specific risks and causes to try to prevent the resident from falling and to try to minimize complications from falling.”  CMS Ex. 24 at 1. 

The policy defines a fall as “unintentionally coming to rest on the ground, floor, or other lower level,” that is not caused by “an overwhelming external force,” such as a resident pushing another resident.  An episode is considered a fall if the resident loses balance and would have fallen except for being caught by someone else or by the resident himself/herself.  A fall without injury is still a fall.  Unless there is evidence suggesting otherwise, when a resident is found on the floor, a fall is considered to have occurred. 

According to the policy, “[c]hallenging a resident’s balance and training him/her to recover from loss of balance is an intentional therapeutic intervention” and not considered a fall.  Id. 

The policy lists three categories of fall risk factors:  environmental; resident conditions; and medical factors. 

• Environmental factors include: wet floors; poor lighting; incorrect bed height or width; obstacles in the footpath; improperly fitted or maintained wheelchairs, and footwear that is unsafe or absent.
• Resident conditions include: fever; infection; delirium and other cognitive impairment; pain; lower extremity weakness; poor grip strength; medication side effects; orthostatic hypotension; functional impairments; visual deficits; and incontinence.  Id.
• Medical factors include: arthritis; heart failure; anemia; neurological disorders; and balance and gait disorders, etc.  CMS Ex. 24 at 2.  

The policy describes “Resident-Centered Approaches to Managing Falls and Fall Risk”: 

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1. Staff, with input from the attending physician, will implement a resident-centered fall prevention plan to reduce the specific risk factors of falls for each resident at risk or with a history of falls.
2. If a systemic evaluation of a resident’s fall risk identifies several possible interventions, the staff may choose to prioritize interventions.
3. Examples of initial approaches might include exercise and balance training, rearranging room furniture, improving footwear, changing the lighting, etc.
4. With the consultant pharmacist and nursing staff, the attending physician identifies and adjusts medications that may be associated with an increased risk of falling, or indicates why those medications could not be tapered or stopped, even for a trial period.
5. If falling recurs despite initial interventions, staff implement additional or different interventions, or indicate why the current approach remains relevant.
6. If the underlying causes cannot readily be identified or corrected, staff will try various interventions, based on an assessment of the nature or category of falling, until falling is reduced or stopped or until the reason for the continuation of the falling is identified as unavoidable.
7. With the attending physician, staff identify and implement relevant interventions to try to minimize the serious consequences of falling.
8. Position-change alarms will not be used as the primary or sole intervention to prevent falls but will be used to assist staff in identifying the resident’s patterns and routines. Use of alarms will be monitored for efficacy, and staff will timely respond to alarms. 

CMS Ex. 24 at 2. 

Finally, the policy lists instructions for monitoring subsequent falls and fall risk: 

1. Staff monitor and document each resident’s response to interventions intended to reduce falling or the risks of falling.
2. If interventions are successful, staff will continue them or reconsider whether they are still necessary if the underlying problem that required the intervention has been resolved.

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3. If the resident continues to fall, staff re-evaluate the situation, considering whether it is appropriate to continue or to change current interventions. As needed, the attending physician will help staff reconsider possible causes that may not previously have been identified.
4. Staff and/or physician document the basis for concluding that specific, irreversible risk factors continue to present a risk for falling or injury due to falls.

CMS Ex. 24 at 2-3. 

Facility policy:  assessing falls and their causes.  The facility had in place a separate policy for assessing falls and their causes. 

The policy includes “general guidelines”:  1) Falls are a leading cause of morbidity and mortality among the elderly in nursing homes; 2) Fear of falling may limit an individual’s participation in activities; 3) Falling may be related to underlying clinical or medical conditions, overall functional decline, and/or environmental risk factors; and 4) Upon admission and regularly afterward, residents must be assessed for potential risk of falls.  Relevant risk factors must be addressed promptly. 

The policy directs staff to:  1) Review the resident’s care plan to assess for any special needs; 2) Identify the resident’s current medications and active medical conditions; and 3) Assemble equipment and supplies, as needed. 

The policy lists equipment and supplies:  1) Equipment to assess vital signs, such as a stethoscope, sphygmomanometer or electric blood pressure device, and oral or rectal thermometer; 2) Tools to assess the resident’s level of consciousness and neurological status, if necessary; 3) First aid kit, if necessary; 4) Resident’s medical chart; and 5) Personal protective equipment, as needed. 

CMS Ex. 25 at 1. 

Steps in the procedure.  The policy lists steps that staff should follow at various stages. 

After a fall: 

1. If a resident has just fallen or is found on the floor without a witness to the event, evaluate for possible injuries to the head, neck, spine, and extremities.
2. Obtain and record vital signs as soon as it is safe.
3. If evidence of an injury, provide appropriate first aid and/or obtain medical treatment immediately.

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4. If an assessment rules out significant injury, help the resident to a comfortable sitting, lying, or standing position and document relevant details.
5. Timely notify the resident’s attending physician and family. When a fall results in a significant injury or condition change, notify the practitioner immediately by phone.  When a fall does not result in significant injury or a condition change, routinely notify the practitioner.  
6. For approximately 48 hours after an observed or suspected fall, observe the resident for delayed complications and document findings in the medical record.
7. Document any signs or symptoms of pain, swelling, bruising, deformity, and/or decreased mobility, changes in level of responsiveness/consciousness and overall function. Note the presence or absence of significant findings.
8. No later than 24 hours after the fall occurs, complete an incident report. A nursing supervisor completes the report and submits it to the Director of Nursing Services. 

CMS Ex. 25 at 1-2; P. Ex. 4 at 3 (Sarza Decl. ¶ 10). 

Defining details of falls.  After an observed or probable fall, staff should clarify the details of the fall, such as when it occurred and what the resident was trying to do at the time the fall occurred.  The policy also directs staff to distinguish falls into categories:  1) rolling, sliding, or dropping from an object; 2) falling while attempting to stand up from a sitting or lying position; or 3) falling while already standing and trying to ambulate.  CMS Ex. 25 at 2. 

Identifying causes of a fall or fall risk.  The policy includes instructions for identifying the causes of falls: 

1. Within 24 hours of the fall, try to identify possible or likely causes, referring to resident-specific evidence, including medical history, known functional impairments, etc.
2. Evaluate chains of events or circumstances preceding a recent fall, including: time of day; time of last meal; what the resident was doing; whether the resident was standing, walking, reaching, or transferring from one position to another; whether the resident was alone or among others; whether the resident was trying to go to the toilet; whether environmental risk factors (slippery floor, poor lighting, furniture, or objects in the way) were involved; and/or whether there is a pattern of falls for the resident.

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3. Continue to collect and evaluate information until the cause is identified or it’s determined that the cause cannot be found.
4. The attending physician will examine the resident or initiate testing, as indicated.
5. Consult with attending physician or medical director to confirm specific causes and, when possible, document the basis for identifying specific factors as the cause.
6. If the cause is unknown, but no additional evaluation is done, the physician or nursing staff should note why.

CMS Ex. 25 at 2. 

Performing a post-fall evaluation.  After a fall, the policy directs the following: 

1. A nurse and/or physical therapist watches the resident attempt to rise from a chair without using arms, walk several paces, and return to sitting. Document the results.
2. If the resident has no difficulty or unsteadiness, no further evaluation is needed.
3. If the resident is unsteady or has difficulty, additional evaluation may be initiated.

CMS Ex. 25 at 2. 

Documentation.  The policy includes additional instructions for documenting.  When a resident falls, staff should record in the resident’s medical record: 

1. Condition in which the resident was found.
2. Assessment data, including vital signs and any obvious injuries.
3. Interventions, first aid, or treatment administered.
4. Notification of physician and family, as indicated.
5. Completion of a fall risk assessment.
6. Appropriate interventions to prevent future falls.
7. Signature and title of person recording the data.

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CMS Ex. 25 at 3. 

Reporting.  Finally, the policy advises staff to notify the following individuals when a resident falls:  resident’s family; attending physician; Director of Nursing Services (DNS); and Nursing Supervisor on duty.  Staff should report other information “in accordance with facility policy and professional standards of practice.”  CMS Ex. 25 at 3.  

Additional policies.  According to Petitioner, the facility’s policies included additional review and intervention requirements.  Petitioner did not submit copies of those written policies but relies on the testimony of its witnesses:  

• Morning clinical meeting. Every weekday morning, the facility’s leadership team (Administrator, DNS, Assistant DNS, infection control nurse, staff development coordinator, unit managers, activities, social services, and rehabilitation) meet to review the incidents, including falls, that occurred during the prior day or weekend.  They review each incident, the interim interventions, and determine whether any changes or additional actions must occur.
• Weekly risk meeting. Each week the DNS, Assistant DNS, unit managers, rehab staff, dietitian, and activities director meet to discuss falls and other incidents, discuss risk of harm from falls, and other issues.
• Monthly/quarterly QAPI (Quality Assurance and Performance Improvement) meetings. The Administrator, DNS, Assistant DNS, department managers, and others meet monthly.  On a quarterly basis, they are joined by the Medical Director, and representatives from pharmacy, laboratory, and radiology.  They discuss various issues, including falls. 

P. Ex. 4 at 4-5 (Sarza Decl. ¶ 10c). Again, Petitioner provided no copies of these policies and limits the evidence to Administrator Sarza’s general claim that, after each fall: 1) the facility “followed the processes and procedures referenced above, including evaluating the situation immediately, at Morning Clinical Meeting, at Risk Meetings, and in the QAPI process”; and 2) “potential interventions were considered and responsive interventions were put in place.”  P. Ex. 4 at 5 (Sarza Decl. ¶ 12).  Petitioner offers no documentation of any of these meetings.  The facility’s Director of Nursing echoes Administrator Sarza’s general claim, but, again, provides no specifics.  P. Ex. 6 at 2-3 (Saks Decl. ¶¶ 6-9).  

For purposes of summary judgment, notwithstanding the absence of supporting documentation (which presumably would have been readily available), I accept Petitioner’s claims that these meetings occurred and resulted in additional interventions.  I do not accept Petitioner’s conclusory assertions that the interventions were appropriate 

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and meant that the facility complied with section 483.25(d).  See Vibra, DAB No. 3094 at 11; W. Tex. LTC Partners, DAB No. 2652 at 6-7. 

The question is whether these meetings produced appropriate interventions, implemented by staff, that reflected a level of supervision and assistance devices adequate to prevent accidents.  As the following discussion shows, they did not.  

Resident 1 (R1).  R1 was a 76-year-old woman, admitted to the facility on January 3, 2023.  She suffered from a long list of impairments, including anxiety disorder,

Parkinson’s disease, Alzheimer’s disease, Aphasia following cerebrovascular disease, depressive episodes, wedge compression fractures of T11-T12 vertebrae,6 and a wedge compression fracture of the third lumbar vertebra.  She had difficulty walking.  CMS Ex. 3 at 1.  She had recently fractured both of her hips.  CMS Ex. 4 at 7; CMS Ex. 6 at 2: CMS Ex. 30 at 2 (Seon-Spada Decl. ¶ 9); CMS Ex. 31 at 2-3 (Bailey Decl. ¶ 14).  

R1 underwent a series of mental status exams.  P. Ex. 1.  Initially (on January 9, 2023), she scored 12 on the BIMS (Brief Interview for Mental Status), which indicates a moderate cognitive impairment.  P. Ex. 1 at 1.  On April 6, 2023, her BIMs score was 9, which also suggests a moderate cognitive impairment.  P. Ex. 1 at 3.  Notwithstanding these scores, an April 10, 2023 medical evaluation described her “ongoing memory issues,” “poor judgment and lack of insight,” and “well-documented history of Alzheimer’s.”  CMS Ex. 21 at 1.  

On June 29, 2023, and July 26, 2023, she again scored 12 on her BIMS.  P. Ex. 1 at 5, 7. 

An assessment, dated September 14, 2023, however, showed that R1 had a BIMS score of 5, which indicates severely impaired cognition and represents a dramatic decline in just seven weeks.  CMS Ex. 20 at 6.  According to an assessment of her functional status, she required “extensive assistance” (2+ person physical assist) with:  bed mobility; transfers; walking in the corridor; locomotion on and off the unit; dressing; toilet use; and personal hygiene.  CMS Ex. 20 at 11.  She required staff assistance for:  moving from a seated to a standing position; walking; turning around while walking; and surface-to-surface (e.g., bed to chair or wheelchair) transfers.  She used a walker and a wheelchair.  CMS Ex. 20 at 12. 

R1’s care plan.  Based on a comprehensive resident assessment, the facility develops the resident’s comprehensive care plan.  42 C.F.R. § 483.20(d).  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 

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accordance with the resident’s comprehensive assessment and plan of care, it violates section 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). 

Here, Petitioner maintains that, upon admission, R1 underwent a fall risk assessment, as required by the facility’s policies.  P. Br. at 5-6.  It supports this assertion with a short and conclusory statement from the facility’s Administrator, Sandra L. Sarza, who declares that the facility “assessed the [r]esident upon admission” and determined her “status vis a vis fall risk, analyzed potential interventions and put appropriate interventions in place.”  P. Ex. 4 at 5 (Sarza Decl. ¶ 12).  The facility has not produced this initial assessment nor described what it said.  

Nevertheless, the facility was plainly aware of R1’s fall risk and planned for it.  Her care plan, initiated on January 3, 2023, identified her high risk for falls related to her confusion, deconditioning, gait/balance problems, incontinence, poor communication/comprehension, psychoactive drug use and lack of awareness of her safety needs.  CMS Ex. 4 at 1, 3; CMS Ex. 5 at 3.  The plan’s goals included keeping her free from falls and minor injury.  Interventions included:  activities “that minimize the potential for falls”; providing a safe environment, with even floors that are free of spills and clutter; providing adequate glare-free light; providing a working and reachable call light; and keeping her bed in a low position at night.  It called for side rails, as ordered; hand rails on the wall; and keeping personal items within reach.  The plan also indicated that R1 needed to be evaluated for, and provided, adaptive equipment or devices.  CMS Ex. 3 at 1; CMS Ex. 4 at 2.; CMS Ex. 5 at 3.7 

R1’s impaired safety awareness included a history of wandering and attempting to elope from the facility.  Additional interventions to maintain a safe environment for R1 included multiple orders for and mentions of a Wanderguard alert bracelet worn on R1’s right ankle.  CMS Ex. 4 at 13; CMS Ex. 3 at 5; CMS Ex. 19 at 34. 

R1’s falls and the facility’s response (or lack of response): 

• At about 9:30 a.m. on January 12, 2023, a nurse aide found R1 on the floor of her room. R1 did not know how she fell or what she had been doing prior to the fall.  No injuries were observed.  CMS Ex. 5 at 4, 7-11.  Staff described the 

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• immediate action taken as “[Resident] to be outside nurse station when up in chair for observation.”  CMS Ex. 5 at 4.8 
• On January 13, 2023, staff added to R1’s care plan that the resident be “in view of staff when out of bed.”  CMS Ex. 5 at 3.9 
• At 7:30 p.m. on January 14, 2023, R1 was found on the floor of her bathroom. The nurse aide had left her alone in the bathroom and she had been trying to get off the toilet independently.  CMS Ex. 6 at 4.
• On January 16, 2023, staff added to R1’s care plan that the staff member “is to be educated not to leave [the resident] in the bathroom alone.”  CMS Ex. 6 at 3; CMS Ex. 8 at 11. 

Thus, facility staff almost immediately disregarded the care plan’s directive that R1 be in view of staff when she was out of bed.  Because staff failed to follow the resident’s care plan, it was not in substantial compliance with section 483.25(d).  White Sulphur Springs Ctr., DAB No. 2520 at 7; Deltona, DAB No. 2511 at 7-8; Venetian Gardens, DAB No. 2286 at 5. 

Moreover, a bathroom can be a dangerous place for a frail individual who is at risk for falls.  Even putting aside her care plan’s explicit instruction, the facility was not providing R1 with supervision that was adequate to prevent accidents; it left a vulnerable resident alone and unsupervised in the bathroom.  By itself, this incident establishes that the facility was not in substantial compliance with section 483.25(d).  Golden Oaks Med. Care Facility, DAB No. 2470 at 6-7 (2012) (sustaining CMS’s finding that the facility was not in substantial compliance with (then) section 483.25(h) based on a single incident, which established that the facility failed to provide the requisite care to prevent falls). 

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• At 10:00 a.m. on January 18, 2023, R1 suffered another fall. She had been standing with a nurse aide who attempted to transfer her into a wheelchair.  The nurse aide was unable to maintain the resident in an upright position and lowered her to the floor.  R1 suffered a skin tear on her right forearm.  CMS Ex. 7 at 3.  This was her first reported injury related to a fall. 
  
  A January 18 care plan entry directs staff to ensure non-skid footwear when the resident is out of bed.  CMS Ex. 4 at 2.10 
• At 11:41 a.m. on March 3, 2023, R1 suffered another unwitnessed fall. Staff found her sitting on the floor of her room, near her dresser.  She had removed her pants and her non-skid socks and told the licensed practical nurse (LPN) that she fell when she was getting herself ready for bed.  CMS Ex. 8 at 3.  A report characterizes R1 as “noncompliant and overestimates her abilities to transfer independently.”  Although she had been redirected on numerous occasions, the effect was temporary, according to the entry.  CMS Ex. 8 at 5. 
  
  R1’s physician ordered staff to monitor her every two hours to prevent falls.  CMS Ex. 8 at 3, 5, 11.  The directive was added to her care plan.  CMS Ex. 4 at 1.  Petitioner does not explain how it implemented the two-hour monitoring, and the record includes no documentation that it occurred.  And, even assuming that staff were monitoring R1 every two hours, that intervention proved ineffective; the resident continued to fall while unsupervised. 
  
  Staff also completed a fall risk assessment on March 4, 2023, and determined that R1 was at high risk for falls and that the facility’s fall prevention policy should be implemented.  CMS Ex. 8 at 8.  This is the first fall risk assessment contained in the record.
• On March 22, 2023, R1’s roommate alerted staff that R1 needed assistance. When staff entered her room, they found R1 on the floor.  She said that she had been pressing her call light for assistance so that she could be changed – she was “very wet.”  When no one responded, she tried to move to her wheelchair in order to take herself to the bathroom.  She fell on the floor next to the wheelchair.  Staff determined that – contrary to her care plan’s directive that she have a working and 

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• reachable call light – her call light was not functioning.  The resident was not wearing anti-slip footwear (also contrary to her care plan’s directive).  CMS Ex. 9 at 3-5, 7-8; P. Ex. 3; see CMS Ex. 4 at 2. 
  
  On March 23, 2023, staff amended R1’s care plan to reflect that they had given her a handbell so that she could ring for assistance when she was in bed.  CMS Ex. 4 at 2.  But, on the same day, according to Petitioner, the facility replaced the call light and removed the handbell.  P. Br. at 7; P. Ex. 4 at 7 (Sarza Decl. ¶ 18a).  
  
  Petitioner blames the resident for breaking her call light and congratulates itself for repairing it the day after it was discovered.  But the facility was required to do more than simply react after an accident occurred.  The resident’s care plan required it to provide her with a working and reachable call light, and the facility had an affirmative duty to ensure that her call light was working and reachable at all times.  Kenton Healthcare, DAB No. 2186 at 13.  This means that staff should have been checking the call light regularly, not waiting until an accident occurred before it did so.  Petitioner does not claim, nor produce any evidence establishing that it took steps to ensure that the light worked. 
  
  On April 12, 2023, the facility installed bed rails, for transferring to and from bed and for turning and repositioning in bed.  CMS Ex. 4 at 5; see CMS Ex. 4 at 2 (January 3 care plan entry, calling for side rails).
• At 1:56 p.m. on April 18, 2023, a nurse aide found R1 lying on the floor at her bathroom’s doorway. She had tried to take herself to the bathroom.  CMS Ex. 10 at 2-3, 6-8.  
  
  On April 19, 2023, staff placed a sign in R1’s room reminding her to call for assistance (“Call Before You Fall”).  CMS Ex. 4 at 3; P. Ex. 4 at 7 (Sarza Decl. ¶ 18b).
• At 9:27 p.m. on May 14, 2023, R1 was again found on the floor beside her bed. She told staff that she had tried to get out of bed.  Although the report characterizes the fall as “witnessed,” it does not identify any witnesses.  CMS Ex. 11 at 6.  In fact, the staff member who filled out a “Witness Statement Form” wrote that she was “not around at the time of the incident” and didn’t “know anything about it.”  CMS Ex. 11 at 5. 
  
  According to Petitioner, R1 said that she could not locate her call light.  P. Br. at 8; P. Ex. 4 at 8 (Sarza Decl. ¶ 18c).  But the incident report does not say that; it says, “Resident stated she was attempt[ing] to get out of bed.”  CMS Ex. 11 at 6.  I nevertheless accept Petitioner’s assertion as true but that doesn’t help Petitioner’s 

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• case.  It presents another example of staff failing to ensure that R1’s call light was working and reachable. 
  
  In any event, staff gave R1 another hand bell and told her to use it to call for assistance.  CMS Ex. 11 at 8. 
  
  At 3:36 p.m. on May 23, 2023, R1 was found “on her knees” by her chair.  She said that she had been “reaching for something.”  CMS Ex. 12 at 9.  Again, facility staff were not present.  See CMS Ex. 12 at 4-8, 11. 
  
  A May 23, 2023 entry in R1’s care plan indicates she would have an OT (occupational therapy) evaluation for use of a “reacher.”  CMS Ex. 4 at 3.  But according to her January 3 care plan’s directive, R1 should have been evaluated for and provided such adaptive devices at that time.  CMS Ex. 4 at 2.
• A progress note, dated June 2, 2023, indicates that the resident is at risk for “week 2 falls” and lists “cont[inue] intervention.” According to the note, the outcome is “safety maintained.”  CMS Ex. 19 at 58. 
  
  But safety was not maintained.  Just a few days later, R1 fell again and, this time, suffered a head wound.  At about 5:00 p.m. on June 7, 2023, a nurse aide found R1 on the floor by her bureau.  CMS Ex. 13 at 7.  Her head was bleeding.  According to a progress note, she was getting out of her wheelchair and fell, hitting her head on the bureau.  CMS Ex. 19 at 57.  She was sent to the emergency room and received three staples to close the head laceration.  Inaccurately, the incident report indicates that no injuries were observed.  CMS Ex. 13 at 12.  A note indicates that staff would “keep [her] door open while on precautions due to high fall risk and safety concerns.”  CMS Ex. 19 at 57.
• On June 19, 2023, R1 had yet another unwitnessed fall. Staff found her lying face-down on the floor of her room.  Using a Hoyer lift, staff took her to the nurses’ station.  She told them that she had wanted to leave her room.  CMS Ex. 14 at 3.  A progress note indicates that the facility would continue interventions.  CMS Ex. 19 at 56.
• Nursing staff heard a loud noise at approximately 12:15 a.m. on July 6, 2023. They found R1 lying on the floor of her room.  CMS Ex. 15 at 6-8; CMS Ex. 19 at 47. 
  
  The facility then updated R1’s care plan to add that staff on the 11-7 shift would, on their first rounds, offer to toilet the resident while she was still awake.  CMS Ex. 4 at 1; CMS Ex. 15 at 11.  

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• At approximately 8:10 p.m. on July 13, 2023, a nurse aide heard R1 calling for help. She found the resident sitting on the floor of her room in front of her wheelchair.  R1 reported that she got into her wheelchair but then slid out.  Staff reminded her to use her call light for assistance with transfers.  CMS Ex. 16 at 3; CMS Ex. 19 at 44. 
  
  On July 14, 2023, staff amended R1’s care plan to add “Dycem to cushion under [wheelchair].”11  “Antirollbacks,” which prevent a wheelchair from rolling backward when a person is standing up or sitting down, were added.  CMS Ex. 4 at 2.  Staff also added physical therapy to evaluate R1 for functional mobility, balance problems, gait training, and safety needs.  CMS Ex. 4 at 3.  On July 28, 2023, physical therapy was ordered five times per week.  CMS Ex. 3 at 4.  “Anti-tippers” were added on August 2, 2023, to prevent the wheelchair from tipping backward.  CMS Ex. 4 at 2.
• On August 8, 2023, a nurse aide again responded to R1’s call for help and found the resident on the bathroom floor. She said, “I’m stupid.  I didn’t call or use my walker but I had to use the bathroom.”  CMS Ex. 17 at 3, 6.  A nurse aide subsequently reported that she had twice attempted R1’s morning care but the resident refused.  The resident finally allowed the care but remained in bed and said that she wasn’t getting up at all.  Five minutes later, she was on the bathroom floor.  CMS Ex. 17 at 4. 
  
  Staff placed another “Call Before You Fall” sign in R1’s room.  CMS Ex. 4 at 2.  Petitioner does not explain what happened to the “Call Before You Fall” sign that was placed in the resident’s room on April 19, which had not protected her from falls.  Except to insist that these virtually identical interventions were “not the same,” Petitioner has not explained why staff determined that a previously unsuccessful intervention would have a different result.12  P. Br. at 9-10.
• At 1:00 a.m. on August 27, 2023, a nurse and a nurse aide heard a noise. They went to R1’s room to investigate and found R1 on the floor between her bed and bathroom door.  They noted “mild redness” on her left shoulder blade.  Using a Hoyer lift, they returned her to her bed.  She asked to go to the bathroom, and they assisted her to the bathroom.  CMS Ex. 18 at 3, 14; P. Ex. 2 at 1.  

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• On August 27, 2023, R1’s care plan was amended to direct staff to offer her toileting at midnight.  CMS Ex. 4 at 2.
• During the survey, a surveyor observed R1 “multiple times.” At 11:14 a.m. on September 13, 2023, he saw her “leaning forward from a soft chair in a sitting area across from the nurses’ station.”  She was reaching for a wheelchair, attempting to stand.  She was “off balance and at risk for falling.”  The surveyor hurried over to her and called out to the two nurses sitting at the nurses’ station.  They were not aware of R1’s situation because they had not been looking at her.  One of the nurses, a “corporate nurse,” did not hear the surveyor call out because she had earbuds in her ears.  Neither nurse was near enough to help R1 if she began to fall.  CMS Ex. 26 at 44; CMS Ex. 31 at 4 (Bailey Decl. ¶ 25).  
  
  The surveyor spoke to the unit manager who told him that R1 was a fall risk and had had multiple falls.  The facility’s DNS acknowledged that, when the surveyor observed R1 attempting to stand, the nurses were not aware of R1’s unsafe behavior and would not have been able to help her if she started to fall.  The DNS told the surveyor, “‘We’ll have to figure out a safe plan’ to keep the resident safe.”  CMS Ex. 26 at 44-45.  In a later interview, the DNS conceded that R1 had fallen multiple times and that care plan interventions had not been effective.  The resident had fallen 14 times – 12 falls were not witnessed and two resulted in injury.  CMS Ex. 26 at 45. 

Petitioner does not challenge any of these employee statements.  See Beatrice State Development 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). 

Petitioner makes much of the claim that R1 did not fall after August 27.  However, R1 was certainly in danger of falling yet again on September 13, but for the intervention of the surveyor.  The undisputed evidence shows that, even when she was at the nurses’ station, in full view of two nurses, she was not properly supervised.  Even if they had been paying attention, which they were not, they could not have reached her in time to prevent her from falling when they became aware of her unsafe behavior. 

The facility’s substantial noncompliance.  The material facts in this case are undisputed, and, as demonstrated by the discussion above, they establish that the facility did not take “all reasonable steps” to ensure that R1 received the level of supervision she required. 

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It is the facility’s responsibility to devise appropriate and effective means of protecting its residents, based on the resident’s condition, the facility environment, and the viable and preferred methods available to the facility.  Heritage Plaza Nursing Ctr., DAB No. 2829 at 14 (2017).  From the time of her admission, the facility recognized that R1 was at risk for falls and developed a care plan to keep her free from falls and injury.  The number of falls that occurred while she was unsupervised “suggests that continuous supervision” – or, at least closer supervision – “would have been an effective measure.”  Heritage Plaza, DAB No. 2829 at 13. 

Because the facility did not provide the level of supervision that R1 required, it was not in substantial compliance with section 483.25(d).  

Further, the undisputed evidence establishes that staff did not follow many of the specific directives from R1’s care plan: 

• Staff left the vulnerable resident alone in the bathroom. CMS Ex. 6 at 4.
• Staff did not ensure that her call light was working and reachable at all times. CMS Ex. 9 at 3-5, 7-8; P. Ex. 4 at 8 (Sarza Decl. ¶ 18c).
• Although her January 3 care plan called for bed rails, the facility did not install them until April 12. CMS Ex. 4 at 2, 5.
• Although her January 3 care plan required that R1 be evaluated for and provided adaptive devices, no evidence suggests that this occurred, and, on May 23, after she fell while reaching for something, her care plan again called for an evaluation for use of an adaptive device. CMS Ex. 4 at 2, 3; CMS Ex. 12 at 4-8.
• Even when R1 sat in full view of the nurses’ station, the nurses did not supervise her and would not have been able to prevent her from falling because they were not sitting near enough to help her. CMS Ex. 26 at 44; CMS Ex. 31 at 4 (Bailey Decl. ¶ 25). 

As the above discussion establishes, the facility did not implement the basic precautions that were called for in R1’s care plan.  These failures put the facility out of substantial compliance with section 483.25(d). 

2. 2. The penalty imposed – $2,110 per day for 72 days of substantial noncompliance – 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 

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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)).13 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 the CMP 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.  Vibra, DAB No. 3094 at 30; Crawford Healthcare and Rehabilitation, 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, November 16, 2023.  CMS Ex. 1; see CMS Ex. 2 (affirming the per-day amount of the penalty but amending the day the facility achieved substantial compliance).  88 Fed. Reg. 69,531, 69,543 (Oct. 6, 2023).  Here, CMS imposed a per-day CMP of $2,110, which is in the low range for per-day CMPs ($129 to $7,752).  42 C.F.R. §§ 488.408(d), 488.438; 45 C.F.R. § 102.3.  

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Except to argue that the facility was in substantial compliance, Petitioner has come forward with no evidence or argument to demonstrate that a reduction is necessary. 

In any event, the facility has a less-then-stellar compliance history.  In the preceding three years, the facility was consistently found out of substantial compliance with program requirements.  CMS Ex. 27.  Among the citations, were two quality-of-care deficiencies, cited in March 2021:  42 C.F.R. § 483.25(a) (Tag F311 – quality of care:  vision and hearing), cited at scope and severity level E; and 42 C.F.R. § 483.25(b) (Tag F686 – quality of care:  skin integrity), cited at scope and severity level G.  CMS Ex. 27 at 2. 

Petitioner does not claim that it is unable to pay the penalty.  

Applying the remaining factors, I have discussed in some detail the facility’s significant failure to provide R1 with the services she needed to prevent physical harm.  Despite her multiple falls, facility staff did not adequately supervise her to keep her safe.  Notwithstanding her documented high risk of falls and her care plan requiring that she be in view of staff when out of bed, she was left alone in the bathroom. For this the facility is culpable. 

Thus, because Petitioner has not shown that a reduction is necessary to make the CMP amount reasonable and, based on the relevant factors (facility history, lack of evidence regarding the facility’s financial condition, the severity of the deficiency, and the facility’s culpability), I find that the relatively low $2,110 per-day penalty is reasonable. 

Conclusion

From September 11 through November 21, 2023, the facility was not in substantial compliance with Medicare program requirements.  The penalty imposed – $2,110 per day for 72 days of substantial noncompliance – is reasonable.